Higgs v Farmor’s School
February 2025
In Higgs v Farmor’s School, Kristie Higgs, a Christian pastoral administrator at Farmor’s School in Gloucestershire, was dismissed for gross misconduct in 2019 after sharing Facebook posts critical of LGBTQ+ relationship education in primary schools. Her posts, shared on her personal account, expressed concerns about teaching “gender fluidity” and equating same-sex marriage with traditional marriage, reflecting her religious beliefs. An anonymous complaint from a parent led the school to investigate, resulting in her suspension and subsequent dismissal. Higgs claimed her dismissal was discriminatory based on her religious beliefs.
The Employment Tribunal initially dismissed Higgs’s claims, stating her dismissal was due to concerns about potential reputational damage rather than her beliefs. The Employment Appeal Tribunal later allowed her appeal, remitting the case for reconsideration. On 12 February 2025, the Court of Appeal ruled in Higgs’s favor, stating that dismissing an employee solely for expressing a protected belief constitutes unlawful direct discrimination under the Equality Act 2010. The court found that while the school argued the posts were intemperate and could harm its reputation, there was no evidence Higgs’s conduct at work was affected or that her posts caused actual reputational damage. The court concluded that her dismissal was not a proportionate response and thus constituted unlawful discrimination.
Employer Takeaways
This case highlights the need for employers to balance employees’ rights to express protected beliefs with potential reputational concerns. Employers should evaluate whether an employee’s expression of beliefs affects their professional conduct or the organisation’s reputation. Mere expression, without workplace impact, may not justify dismissal. Any disciplinary action should be proportionate to the conduct. Dismissal may be deemed excessive if less severe measures suffice. Also maintain thorough records of the rationale behind disciplinary actions, demonstrating consideration of both the employee’s rights and the organisation’s interests.
Whistleblowing
Rice v Wicked Vision; Barton Turns v Treadwell
November 2025
Two joined appeals tested whether an employee who brings an automatic unfair dismissal claim for whistleblowing under section 103A ERA can also bring a detriment complaint under section 47B where the alleged detriment is the dismissal itself. Earlier decisions had pulled in different directions when applying section 47B(2), which excludes detriment claims where the detriment “amounts to dismissal”. The parties also disputed how far the Court of Appeal’s earlier judgment in Timis v Osipov controlled the outcome. The Court listed the cases together and treated the Osipov reasoning as the framework unless a higher court or Parliament said otherwise.
The Court of Appeal held that a whistleblowing detriment claim can proceed where the complained-of detriment is the dismissal, provided the detriment claim is brought against a co-worker and the employer’s liability arises vicariously under section 47B(1B). The Court made clear it did not agree with the Osipov construction but considered itself bound by it. Section 47B(2) therefore does not block a co-worker detriment claim even if the detriment is the dismissal. Both claimants were allowed to pursue their detriment claims alongside their section 103A dismissal claims. The Court noted that conflicting interpretations now exist across multiple levels and flagged that only the Supreme Court or legislative amendment will resolve the position.
Employer Takeaways
The whistleblowing route now runs on two parallel tracks. A claimant can pursue an automatic unfair dismissal claim against the employer and a detriment claim based on the dismissal against individual managers, with vicarious liability attaching to the employer. Case handling should reflect that exposure from the first point a protected disclosure is alleged. Keep a clear record of who took each step, what evidence they saw and the reasons given at each stage.
Training for decision makers should cover protected disclosures, detriments and the separate liabilities that flow from sections 103A and 47B. Where several managers are involved in a dismissal, document their roles carefully to reduce personal risk and to evidence that reasonable steps were taken. Wording in indemnities and D&O arrangements may need a review given the increased likelihood of individual respondents.
Movement at a higher level is possible. Until a further appellate decision or legislative change lands, plan on the basis that a detriment claim based on dismissal can run in tandem with a section 103A claim. Litigation strategy, reserves and settlement discussions should take account of the additional heads of claim and the involvement of individual managers.
“Course of Employment”
AB v Grafters Group
September 2025
The claimant, “AB,” worked via a hospitality agency and believed she was booked to serve a shift at Hereford Racecourse on 1 November 2021. She arrived late to the agency office and missed the transport the employer had arranged for workers to travel to Hereford. A male colleague (“CD”) offered her a lift, telling her she was not required to work that day and then driving her toward a golf course. During the journey he sexually harassed her: touching, showing pornographic images, asking sexual questions, attempting to place his finger in her mouth or ear, and coercing a kiss. The Employment Tribunal accepted those acts as harassment but held that they were not done “in the course of his employment,” so the employer was not liable under section 109 Equality Act 2010. The tribunal found that CD had no obligation to drive her, that the lift was not employer-arranged or approved, and that there was no expectation of informal lifts between colleagues.
On 28 August 2025 the Employment Appeal Tribunal (Judge Tayler) allowed the appeal against the ET’s decision. The EAT held that the tribunal erred by failing properly to apply the doctrine of an “extension of employment” (derived from Chief Constable of Lincolnshire Police v Stubbs) when determining whether CD’s actions could fall within his course of employment. The EAT stressed that once it is accepted the act was outside working hours or not directly part of his duties, a tribunal must go on to consider whether there is a sufficient nexus or connection with employment to bring it within course of employment. The EAT found the tribunal had ignored material facts: CD had sent sexually harassing texts while working, had in the past driven the claimant to jobs, and the claimant believed she was supposed to work that day. The ET had failed to analyze whether those factors, taken together, could render the lift and harassment an extension of employment or part of a course of conduct. The EAT also held that the tribunal’s reliance on CD’s motive or lack of employer knowledge were irrelevant factors (because under section 109(3) EA knowledge or approval by the employer is not necessary). The EAT remitted the case to the same Employment Tribunal to reconsider whether the conduct in the car could properly be treated as done in the course of employment.
Employer Takeaways
This decision reinforces that employers must be alert to the risk of liability for harassment outside formal workplace settings where there is a sufficient connection to the employment. Employers should not assume that acts beyond working hours or off premises will automatically fall outside liability. In harassment claims of this type the employer should ensure that the initial tribunal properly considers not only whether an act was at work or during duty hours, but also whether it might be an “extension of employment” or part of a continuous course of conduct.
In defending such claims, employers should gather evidence about prior conduct (texts, communications), past informal practices (colleagues offering lifts), and the context binding the parties to work. The employer’s knowledge or approval of the act is not required to trigger liability under section 109(3), so absence of approval will not always safeguard.
Finally the remittal underscores the importance of ensuring the tribunal is given full argument and findings on the nexus question rather than stopping at the “outside work” threshold.
Transgender Participation and the Equality Act
Haynes v English Blackball Pool Association
August 2025
The claimant, a professional pool player and transgender woman with a Gender Recognition Certificate, had previously played for the Kent women’s team. In August 2023, the English Blackball Pool Federation amended its rules to restrict female competitions to biological women only. As a result, the claimant could no longer compete in the women’s category, though participation remained open in men’s or open competitions.
She brought a county court claim alleging direct discrimination on the basis of gender reassignment under the Equality Act 2010.
The claim was dismissed. The court held that following the Supreme Court’s ruling in For Women Scotland v Scottish Ministers, the terms “sex” and “woman” in the Equality Act 2010 refer only to biological sex. The correct comparator for the claimant was a biological man who was not transgender, and such a person would also have been excluded from the female category. As a result, there was no less favourable treatment and no discrimination on the ground of gender reassignment.
Although unnecessary to dispose of the claim, the court also considered the sports exception (s.195 EqA) and the single-sex services exception (Schedule 3, para 28 EqA). It held that pool qualifies as a “gender-affected activity” because, on average, men have sex-related advantages in the game, and that excluding biological men was necessary to secure fair competition and proportionate to the legitimate aim of promoting fairness and female participation. Arguments under the Human Rights Act were also rejected, with the court signalling that an appeal would have little prospect of success.
Employer Takeaways
Although outside the employment context, this is the first decision on transgender participation since the For Women Scotland ruling. It reinforces the principle that “sex” under the EqA means biological sex, regardless of a Gender Recognition Certificate. For service providers, sports bodies and potentially employers offering single-sex spaces or activities, the case signals that exclusions based on biological sex may be justified where fairness, safety or legitimate aims are engaged. It also lowers the threshold for what may be deemed a “gender-affected activity”, which could have wide-ranging implications beyond high-contact sports.
Alternative Employment in Redundancy
Hendy Group v Kennedy
June 2025
In Hendy Group Ltd v Kennedy [2024] EAT 106 the claimant, Mr Kennedy, had worked for the Hendy car dealership chain since 2013 and, after more than a decade in frontline sales, moved into a training manager role in 2015.
When the pandemic reduced training demand, the post was placed at risk and Mr Kennedy accepted that both the redundancy situation and his selection were genuine.
During a seven-week notice period, however, the employer simply directed him to its public vacancies page, reclaimed his laptop so he lost access to the intranet, failed to alert recruiting managers that he was at risk and even told him that any further applications for sales roles would be rejected.
The employment tribunal held that this lack of proactive assistance, as well as the active blocking of credible applications, made the dismissal unfair and awarded him his full losses with no Polkey reduction.
On 6 June 2025 the Employment Appeal Tribunal upheld that ruling, describing Hendy Group’s approach as one that no reasonable employer would have adopted.
Employer Takeaways
The decision makes it clear that a fair redundancy exercise involves more than publishing a vacancy list to satisfy the suitable alternative employmentrequirement. Where suitable roles exist, employers have to take positive steps to match at-risk staff to alternatives, such as keeping them connected to internal recruitment systems, giving practical help with applications and ensuring hiring managers know that redeployment candidates are available.
Treating a long-serving employee as an external applicant, withdrawing their IT access or actively discouraging applications would fall outside the range of reasonable responses and expose the business to an unfair dismissal finding.
To minimise that risk, organisations should embed a structured redeployment process: maintain vacancy registers that remain accessible to affected staff, assign HR or line manager support to discuss suitability and training needs, record every role considered (with reasons if rejected) and communicate the employee’s availability across the business.
Reasonable Adjustments
Zen Internet v Stobart
November 2025
Mr Stobart was Chief Executive of Zen Internet. The company dismissed him for capability without running any process. A tribunal held the dismissal was procedurally unfair. It then limited compensation on a Polkey basis, deciding that even with a proper procedure the outcome would still have been dismissal and that a fair process could have been completed within roughly two months from the date notice was given. Compensation was capped to reflect pay over that two-month window.
The Employment Appeal Tribunal upheld the employer’s appeal in part. On Polkey, it held that the tribunal had asked the wrong timing question. The evaluation should not have started on the date of dismissal and worked forward. It should have considered when the capability concerns crystallised, which was more than three weeks earlier, and then assessed how long a fair process would reasonably have taken from that earlier point. A distinct argument that no procedure was needed because of seniority failed. This was not one of the rare cases where an employer can dispense with process due to the role held. A fair capability route was still required.
Employer takeaways
Polkey is not tied to the dismissal date. Where a tribunal is deciding what would have happened, it can look back to when the concerns became concrete and then model a fair process from that point. For senior roles, do not bank on a “position too senior for process” line. Tribunals expect a real procedure unless facts are truly exceptional. For capability cases at executive level, map the timeline carefully, record when issues crystallise, and keep evidence of the steps a fair process would have involved, including meetings, decision and appeal. That record gives you a credible basis for any Polkey submissions and reduces arguments that compensation should run longer than necessary.
Unfair Dismissal
O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust
November 2025
Ms O’Brien faced allegations that she had not worked contracted hours and had claimed overtime incorrectly. The Trust became aware of concerns in 2018 but did not put them to her until a year later. By that time she had PTSD, which affected her ability to remember events. Following a disciplinary process she was dismissed for misconduct. The tribunal found the dismissal fair and rejected a reasonable adjustments claim that focused on the employer’s failure to speak to her informally and promptly about the allegations.
The Employment Appeal Tribunal allowed the appeal in part. It held that the tribunal had accepted the delay made it harder for Ms O’Brien to defend herself yet failed to reflect that finding in its analysis of fairness. The decision on unfair dismissal was quashed and sent back for reconsideration. The EAT also held that the reasonable adjustments claim required a fresh look. The relevant alleged failure occurred when the Trust missed the opportunity to speak with her promptly, identified as no later than March 2019. The tribunal must reconsider whether time should be extended on a just and equitable basis.
Employer takeaways
Delay is not a procedural footnote. Where an employer knows about concerns but waits many months before raising them, the employee’s ability to answer the case can be compromised, especially where health or memory is in issue. A fair process depends on timely, specific allegations supported by contemporaneous material. If historic issues surface, record when concerns crystallised, explain any unavoidable delay and consider whether an informal meeting or a focused terms-of-reference letter would help the employee respond. Where disability is in play, assess adjustments early, for example phased interviews, written prompts or access to diaries and rotas, so that recall is not the deciding factor. These steps support a sustainable fairness finding and reduce the risk of a remittal on appeal.
Travel Time and the NMW
Taylor Services Ltd v HMRC – Travel Time and the NMW
August 2025
Taylor Services Ltd employed poultry technicians who travelled directly from their homes to farms across the UK, sometimes for journeys lasting many hours. HMRC investigated whether travel to and from these farms should count as “time work” under the National Minimum Wage Regulations 2015. HMRC issued enforcement and penalty notices for underpayment.
The Employment Tribunal initially sided with HMRC, finding that workers were under the employer’s control and so their travel should count as working time. However, the Employment Appeal Tribunal overturned that ruling. HMRC appealed further to the Court of Appeal.
The Court of Appeal dismissed HMRC’s appeal, upholding the EAT decision. It held that travel was not time work, and commuting from home to the first workplace and back again was not “time work” under Regulation 30 of the NMW Regulations. Even though the employer dictated the destination, the workers were not performing duties during travel and could use the time as they wished, subject only to being present in the vehicle.
Under Regulation 34, travel only counts as time work if it takes place when the worker would otherwise be working. These conditions were not met.
Employer Takeaways
The judgment confirms that ordinary commuting, even if lengthy or burdensome, does not need to be paid at the NMW unless it falls within Regulation 34. The Court acknowledged HMRC’s concerns about potential gaps in protection for workers who spend long hours travelling but stressed that only Parliament could change the law.
For employers, the decision provides clarity: unless travel occurs during working hours or meets Regulation 34 conditions, it is not payable as time work. For low-paid or itinerant workers, the case highlights the risk of unpaid travel consuming a substantial part of the working day.
TUPE & Discrimination
Wainwright v Cennox plc
September 2025
Ms Wainwright began working in 2002 as Customer Services Director for a small business where she sometimes stood in for the managing director. In January 2018 her employment transferred under TUPE to Cennox plc, a larger organisation, and her title changed to Head of Installations. Later that year she was diagnosed with cancer and went on extended sick leave.
During her absence, a colleague was appointed to the role of Head of Installations on a permanent basis. Ms Wainwright discovered this through a LinkedIn announcement, which caused her obvious concern about her position. When she queried the appointment, HR assured her it would not affect her and suggested that the appointment was temporary. She was later issued with a revised job description and organisational chart which she believed amounted to a demotion.
She raised a grievance but resigned after delays in the grievance process. She then brought claims for disability discrimination and constructive unfair dismissal. The employment tribunal found in her favour on the section 15 Equality Act claim, holding that she had suffered unfavourable treatment arising in consequence of her disability, including the permanent appointment of her colleague during her sick leave, the announcement made to her team without her involvement, her removal from the organisational chart and the misleading information she was given about the appointment being temporary. However, the tribunal rejected her claim for constructive dismissal.
Ms Wainwright appealed the constructive dismissal finding. The Employment Appeal Tribunal held that the tribunal had misapplied the law by failing to ask whether the discrimination itself amounted to a repudiatory breach of contract. The tribunal had narrowed its focus to her dissatisfaction with the job title and the delay in the grievance process, overlooking that the discriminatory treatment could itself have been an effective cause of her resignation. The EAT confirmed that where there are multiple reasons for a resignation, discrimination need only be one effective cause to render the dismissal discriminatory. The case was remitted to the tribunal to reconsider. It was later reported that following the remittal Ms Wainwright succeeded in her constructive dismissal claim and was awarded £1.2 million in compensation for discriminatory dismissal.
Employer Takeaways
The case underlines the risks when organisational change coincides with long-term absence. Employers should not use a period of sickness or maternity leave as an opportunity to replace or restructure the absent employee’s role without careful consideration of the impact. Decisions affecting the individual should be communicated transparently and the person should not be misled, even with good intentions, as this can amount to unfavourable treatment.
In modern workplaces, announcements will often reach employees indirectly through social media, making transparency even more important.
The case also demonstrates that where discrimination is found, it can form the basis of a constructive dismissal claim, significantly increasing the level of compensation exposure. Employers should ensure grievances are dealt with promptly and comprehensively, particularly where allegations of discrimination are in play, as delays will compound the risk of a resignation being treated as a discriminatory dismissal.
Unfair Dismissal
Alom v Financial Conduct Authority
October 2025
Mr Alom, an FCA employee, was summarily dismissed for gross misconductafter the FCA concluded he sent an anonymous hostile email to a colleague and then breached confidentiality in a further email to managers. A forensic check of his work emails did not identify the sender, but the FCA relied on the content and surrounding facts.
The tribunal rejected his unfair dismissal, discrimination and harassment claims, finding a genuine belief in guilt, reasonable grounds and a reasonable investigation despite some minor errors.
On appeal, the EAT dismissed all grounds. It held there is no absolute requirement to provide interview transcripts where the employer is not relying on those transcripts and the employee has enough information to answer the case. An HR “script” for the chair did not show predetermination where the decision maker reached an independent view. A search of the claimant’s work computer did not affect fairness because it was not relied on for the dismissals.
A nine-month delay in the tribunal’s reserved judgment was excessive, but did not render the hearing unfair, applying Bangs v Connex.
Employer takeaways
The decision underlines the importance of contemporaneous record-keeping in disciplinaries. It helps to set out, in simple terms, what material the disciplinary chair actually considered and what they relied on. Where the case does not turn on witness interviews, full transcripts are not essential, but the employee still needs enough detail to answer the allegations. That usually means the core documents and a clear statement of the charges.
HR support is acceptable where it structures the meeting and ensures procedural steps are covered. Problems arise when materials read as opinions on credibility or proposed outcomes. A short note from the chair, in their own words, explaining the evidence reviewed and their reasoning, will show an independent decision.
Where devices or mailboxes are searched, the paperwork should show that the policy allows it, that the scope was limited to what was necessary, and why the search was undertaken. If the search played no part in the charges or the outcome, recording that fact can help close off privacy arguments.
Procedural slips do not automatically make a dismissal unfair. Tribunals look at overall fairness under section 98(4) ERA 1996. Clarity on the allegations, a proportionate investigation, disclosure of the evidence actually relied on and an independent decision with reasons remain the points that carry weight. Delays in a tribunal issuing its written judgment do not, on their own, show that the hearing was unfair.
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