Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Legal definition of a ‘woman’
Women Scotland Ltd v The Scottish Ministers
In 2018, the Scottish Government enacted the Gender Representation on Public Boards (Scotland) Act, aiming to improve female representation on public boards. The accompanying statutory guidance expanded the definition of “woman” to include transgender women holding a Gender Recognition Certificate (GRC), aligning with the Gender Recognition Act 2004.
For Women Scotland (FWS), a gender-critical advocacy group, challenged this guidance, arguing that the Equality Act 2010 defines “woman” based on biological sex and that the Scottish Government’s interpretation exceeded its devolved powers. The Court of Session initially upheld the guidance, but FWS appealed to the UK Supreme Court.
On 16 April 2025, the UK Supreme Court unanimously allowed the appeal, holding that the terms “man”, “woman” and “sex” in the Equality Act 2010 refer to biological sex. The Court reasoned that including GRC-acquired gender in these definitions would disrupt the statute’s coherence, particularly in areas like pregnancy, maternity, and sex-based protections.
The Court emphasised that this interpretation does not deprive transgender individuals of legal protection. The Equality Act 2010 separately protects those with the characteristic of gender reassignment. Transgender individuals retain protections against direct discrimination, indirect discrimination and harassment.
Employer Takeaways
This newly-clarified interpretation has wide, practical implications for UK employers, particularly in relation to workplace policies, the provision of single-sex services and equality and diversity programmes.
Employers should review their workplace policies and make any necessary updates to ensure they reflect the legal definitions of “man”, “woman” and “sex” as meaning biological sex under the Equality Act 2010. Organisations that offer single-sex services should carefully assess their current practices to ensure they comply with the clarified legal definitions. They must also be able to demonstrate that any exclusions or restrictions serve a legitimate aim and are proportionate.
Employers should also ensure that staff training materials are updated to explain the legal position, including the distinction between biological sex and the protected characteristic of gender reassignment. Employees should also be made aware of the rights and protections afforded to transgender individuals under the law.
When developing equality and diversity policies or initiatives, employers should take care to follow the legal framework set out in the Equality Act 2010. They should ensure that any actions taken to support inclusion do not conflict with the clarified legal definitions around sex.
Given the legal sensitivities and the importance of getting this area right, employers may find it helpful to seek advice to ensure that policies are both inclusive and lawful, and that all employees feel respected and supported.
Whistleblowing
Sullivan v Isle of Wight Council
Ms Sullivan applied for a position with the Isle of Wight Council. During the application process, she raised concerns about potential wrongdoing within the council. Subsequently, she was not offered the job and claimed this was due to her whistleblowing, seeking protection under whistleblower legislation.
The Court of Appeal determined that whistleblowing protections do not extend to external job applicants. The court reasoned that the position of someone seeking employment is materially different from that of an existing employee. Therefore, Sullivan was not entitled to whistleblower protection in this context
Employer Takeaways
Employers should be aware that, under current UK law, whistleblowing protections apply to employees and certain workers, but not to external job applicants. While this ruling clarifies the legal position, organisations may still consider implementing fair recruitment practices that encourage transparency and address concerns raised during the hiring process.
Unfair dismissal
Hewston v Ofsted
A school inspector employed by Ofsted was dismissed following a single incident involving physical contact with a pupil during a school visit. The inspector challenged the dismissal, arguing that there was no clear policy or training addressing such conduct.
The Court of Appeal found that the employment tribunal had erred in upholding the dismissal as fair. The court highlighted the absence of a clear written policy or training on the matter, concluding that the dismissal was not justified under these circumstances.
Employer Takeaways
Employers should ensure that their dismissal policies are clearly documented and that employees receive appropriate training on expected conduct. This case underscores the importance of having explicit guidelines and training to support fair disciplinary actions.
Race and sex discrimination
Ms A Pereira v Wellington Antiques Ltd and J M Wellington
Ms Pereira brought claims against her employer, Wellington Antiques Ltd, and an individual, J M Wellington, alleging harassment related to race and sex. The tribunal examined remarks made about Pereira that were deemed “inherently sexist” and linked to outdated notions of men being primary breadwinners.
The employment tribunal upheld Pereira’s claims, finding that the remarks constituted harassment related to sex. The tribunal’s findings emphasised that such comments perpetuate discriminatory stereotypes and contribute to a hostile work environment.
Employer Takeaways
This case highlights the need for organisations to actively challenge and eliminate discriminatory attitudes and behaviours in the workplace. Employers should also review their policies and training programmes to address and prevent harassment based on sex and race.
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Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
