Employment Essentials: Review of the Year 2025

More than just the Employment Rights Bill

The 2025 employment law year has been dominated by the Employment Rights Bill, soon to become the Employment Rights Act 2025. At the time of writing, the ERB is nearing its passage into law with some last-minute compromises - most notably replacing the provisions which would have made unfair dismissal protection a day-one right, with a six-month qualifying period, but also a surprise removal of the statutory cap on unfair dismissal awards.

We have spent the last year tracking the ERB's progress to ensure employers and employees stay up to date with the latest developments and remain clear on their rights. See our tracker Employment Essentials: employment law changes 2025 and beyond to find out more.

Ahead of the 26 anticipated consultations on the implementation of the ERB over the next couple of years, for now we pause, put the ERB to one side and reflect on the case law and other notable developments from 2025 with a musicals theme – yes, there has been lots of law outside of the ERB to also contend with!

Equalities: A Funny Thing Happened on the Way to the social Forum; Guys & Dolls?; Le Cage l'aidant; A Chorus Line of reminders

Harassment: Here & Now: The All Reasonable Steps Musical; Anything Goes Responsibility

Family Friendly: Mamma Neo; Mamma Mia! Here We Go Again and again; Arranging Mary Poppins

Status: Return to the Forbidden causation test; Rent a pilot; The Producers of a list or and an agency?

Whistleblowing: Wicked disagreement; The Phantom of the employer; Whistleblowing Down the Wind

Trade unions: Company list

TUPE: The Book of Moreman

Wages: The Contractual Commitments; Come from far Away

Redundancy: Avenue HR1; My Fair Redundancy

Unfair dismissal: Chitty Chitty Bye Bye

Settlement agreements: The Sound of Disclosure; LTIP Never Dies

Data protection: Into the 'organised filing system' Woods; Think before Singin' in the Raine

Tribunal procedure: Tribunals and the Amazing Technicolor Dreamportal; The Lyin' King; Legally Privileged; Ghost Orders; Six Twelve

And this years 'Nice try' Award goes to…

 

Equalities

A Funny Thing Happened on the Way to the social Forum

Those holding a gender-critical belief are protected under the Equality Act 2010 (EqA) (as are those holding a gender identity belief). However, the manifestation of such a belief may, depending on the circumstances, be restricted. Employees don't have to keep their protected religious or philosophical beliefs to themselves and have qualified rights to express and hold opinions that others may find distasteful or offensive. But where should employers draw the line and can they restrict what their staff say in their own time on social media?

On 12 February 2025, the Court of Appeal handed down an important judgment on this issue in Higgs v Farmor's School [2025] EWCA Civ 109. The Court considered the dismissal of a school pastoral administrator and work experience manager for reposting gender critical views on social media, finding that the employee’s dismissal was disproportionate in the circumstances and amounted to direct religion or belief discrimination.

The judgment clarifies that the holding of a belief and the manifestation of that belief are to be treated differently. In religion or belief cases, dismissing an employee just because they hold or express a protected belief is unlawful discrimination. However, dismissing an employee because of something objectionable in the way they express the belief is potentially justified. The question is whether dismissal is a proportionate response.

On the facts in Higgs the Court of Appeal acknowledged that the school was entitled to object to the employee's posts because of the offensive language used and because the context of sex education in schools was relevant to the employee's work. However, its decision to dismiss was "unquestionably a disproportionate response". That decision was based on concerns about potential future reputational damage. Even where the risk of reputational damage can be shown, an employer's interference with an employee's right to express their beliefs must still be proportionate. The proportionality of its interference will depend on whether the views are expressed on matters central to its business, the way in which the beliefs are expressed and whether the views could be imputed to the employer. In particular:

• An employee’s statement should be judged "by what they actually say (albeit including any necessary implications) rather than by what some readers might choose illegitimately to read into [their words]."
• Employers must guard against making stereotypical assumptions about the extent of the employee's beliefs, not equating gender-critical beliefs with transphobia, to use the EHRC's example.
• There is no universal rule that an employee's lack of insight into the consequences of their actions may justify an employer in choosing dismissal rather than a less severe sanction.

Handling conflicts of belief in the workplace remains a difficult area for employers to navigate and the law is complex. However, the Court of Appeal stressed that there is no right not to be offended and that "freedom of speech necessarily entails the freedom to express opinions that may shock and offend".

Guys & Dolls?

We now turn to the most controversial case of the year For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16.

The Supreme Court has held that the terms ‘woman’, ‘man’ and ‘sex’ in the EqA refer to a person’s 'biological sex' (being the sex of a person at birth). Therefore, a person with a Gender Recognition Certificate (GRC) in the female gender does not come within the definition of a 'woman' under the EqA.

Although the Gender Recognition Act 2004 (GRA) provides that a trans person with a GRC is entitled to have their acquired gender recognised ‘for all purposes’ this is subject to exceptions including 'provision made by… any other enactment or any subordinate legislation’. The Supreme Court concluded that the exception contained in the GRA applies where there is a clear incompatibility with other legislation making that other legislation’s provisions incoherent or unworkable. It concluded that a ‘certificated sex’ interpretation of the EqA would:

• lead to incoherence, particularly in areas like pregnancy, maternity, and sex-based protections.
• unfairly divide the trans community (by giving those with a GRC greater rights) and create practical issues for service providers, who cannot lawfully ask if someone holds a GRC.
• erode protections for others, such as lesbian-only spaces and associations;
• interfere with the coherent function of the legal provision of separate spaces and single-sex services, communal accommodation, and medical care; and
• impede the coherent and practicable function of provisions relating to single sex characteristic associations and charities, fair participation in sport, the operation of the public sector equality duty and the armed forces.

As pointed out by the Supreme Court, this interpretation does not remove protection from trans people (with or without a GRC). Trans people are protected from discrimination on the ground of gender reassignment and are also able to claim direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired gender.

This case involves issues subject to intense and often heated debate in recent years over which individuals and organisations may hold firm views. It should be remembered that the Supreme Court had not been asked nor addressed the sociological question of 'who is a woman'. Instead, it was a question of statutory construction: How are 'women', 'men' and 'sex' defined for the purposes of the EqA. The Court has answered with a clear 'biological sex' being the sex of a person at birth.

This important judgment has led to further controversy over the now delayed updates to the ECHR's Code of Practice for services, public functions and associations. An issue that will continue to make headlines in 2026.

Le Cage l'aidant

Is a family caregiver of a severely disabled child entitled to rely on the anti-discrimination protection that would be afforded to that disabled person if they were the worker?

In G.L. v AB Spa [Bervidi] C-38/24, the Court of Justice of the European Union has held that under the relevant European Union Directive:

1. The prohibition of indirect disability discrimination includes associative discrimination, where the employee does not themselves have a disability but is subject to indirect disability discrimination because of the assistance that they provide to their child who has a disability.
2. The requirement to make reasonable accommodation includes situations where the employee does not themselves have a disability but provides primary care to a child with a disability, to the extent that this may be done without imposing a disproportionate burden on the employer.

But why is this important following Brexit? On 1 January 2024, the Equality Act 2010 (Amendment) Regulations 2023 inserted a new section 19A in the EqA providing that indirect discrimination can be established if the claimant is put (or would be put) at 'substantively the same disadvantage' as persons who share the relevant protected characteristic. Effectively codifying the then EU pre-Brexit position. Prior to s19A coming into force, it was accepted case law that indirect discrimination claims could be brought where claimants did not have the protected characteristic of the disadvantaged group but shared the same particular disadvantage. However, that does not go so far as to extend the duty to make reasonable adjustments to a non-disabled carer. It remains to be seen if Bervidi will have any impact on the future development of indirect discrimination in the UK.

A Chorus Line of reminders

Also on the equalities front this year, we are reminded:

1. Contract workers cannot claim indirect discrimination against the end user regarding terms of their employment contract with their actual employer (Djalo v Secretary of State for Justice [2025] EAT 67).
2. The duty to make a reasonable adjustment does not apply to an adjustment that has no prospect of success (Hindmarch v North-East Ambulance NHS Foundation Trust [2025] EAT 87).
3. A tribunal must take a clinical diagnosis of autism or ADHD into account as evidence as to the impact of that impairment. The diagnosis reflects a clinical judgment that someone is significantly different from the norm as regards the area of functioning covered by the diagnosis (Stedman v Haven Leisure Ltd [2025] EAT 82).
4. A requirement that participants had to be in employment when changes were made to a parent company's Long Term Incentive Plan in order to benefit from them, was justified indirect age discrimination as a proportionate means of achieving the legitimate aim of retaining staff (Fasano v Reckitt Benckiser Group plc and another [2025] EWCA Civ 592.
5. Communications regarding the impact of Brexit and the EU Settlement Scheme were not a detriment nor were they, in the requisite sense, because of the claimant’s Italian nationality, but were because of the change in his immigration status and the associated introduction of a new settled-status scheme for which he was eligible (Tamponi v Medequip Assistive Technology Ltd [2025] EAT 180.

Harassment

Section 109 of the EqA imposes statutory vicarious liability on employers, making them responsible for acts of discrimination, harassment, and victimisation committed by their employees acting “in the course of employment” subject to a statutory "all reasonable steps" defence. This year we had two notable cases on the application of s109.

Here & Now: The All Reasonable Steps Musical

Under section 109(4) of the EqA, an employer can establish a statutory defence in a claim involving harassment by a colleague where the employer can demonstrate that it took "all reasonable steps" to prevent the harassment occurring. This can be a high hurdle. This year in Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust [2025] EAT 42 we have been provided with a useful example of a successful "all reasonable steps" defence.

In this case, C a Trust employee, was Branch Secretary of UNISON. H, another Trust employee, had sought to terminate his UNISON membership, but his subscriptions were still being deducted. H went to C's office during a break from work to ask for a refund. When C refused, the discussion became heated and H made a racist comment.

The case against the employer failed in two respects:

1. Not "in the course of employment"

The EAT noted that there were several connections between the incident and H's employment by the Trust:

• it took place during H's working day;
• in an office close to his working area; and
• it related to union membership that entitled him to the support of a union recognised by the Trust.

However, H's membership of UNISON was a personal choice and the conversation related to a personal dispute with UNISON over union dues, accordingly H was not acting "in the course of employment" for the purposes of the EqA.

2. "All reasonable steps" defence established

In the alternative, the Employment Appeal Tribunal (EAT) also agreed that the Trust had taken "all reasonable steps" to prevent harassment for the purposes of section 109(4) (principals' liability for acts of agents). The steps taken by the Trust were:

• An induction session for all employees on dignity at work at which the Trust's core (‘PROUD’) values were introduced.
• Annual performance assessments which included consideration of compliance with PROUD values.
• Display of PROUD posters in the workplace;
• The conducting of mandatory equality and diversity training every three years (recently completed by H a few weeks before the incident).

Since no further steps which had not been taken had been suggested in the evidence, it was reasonable to conclude that the above comprised "all reasonable steps".

There is little case law on the s109 "all reasonable steps" defence as this statutory defence is infrequently used. However, since the duty to prevent sexual harassment was introduced in October 2024 this may change. Currently, the duty to prevent sexual harassment only requires employers to have taken "reasonable steps", a lower threshold. However, under the ERB this will be amended to require employers to take "all reasonable steps" to prevent sexual harassment. Employers should take note of this judgment.

Anything Goes Responsibility

In AB v Grafters Group Ltd (t/a CSI Catering Services International) [2025] EAT 126, the EAT has set out useful guidance on the correct approach to the question of whether or not a person is acting "in the course of employment" under section 109:

1. Employers are responsible for anything an employee does "in the course of their employment".
2. It is the alleged harasser who must be acting in the course of their employment, not the victim.
3. The term “course of employment” is not the same as for common law vicarious liability.
4. The term “course of employment” should be given its normal, everyday meaning and not a legal technical meaning.
5. The definition should be interpreted broadly.
6. Each case depends on its specific facts, with the result that different decisions may be made in circumstances which appear similar.
7. Tribunals must look at all the circumstances to decide if it was work-related. Key factors include where and when the act happened.
8. Even if discrimination or harassment occurs outside of the workplace or working hours, it might still count if there is a sufficient “nexus or connection with work”. Tribunals need to consider whether the circumstances are such to make the situation an “extension of work and the workplace”.
9. It does not matter if the employer knew or approved of what happened.

Family Friendly

Mamma Neo

2025 has added to the suite of family-friendly related leave, the new statutory to neonatal care leave and pay introduced by the Neonatal Care (Leave and Pay) Act 2023. Eligible parents of children born on or after 6 April 2025, are entitled to take up to 12 weeks of leave on top of any other family leave they may be entitled to, including maternity and paternity leave. The ERB will be bringing some further tweaks to the existing family-friendly suite of rights, for example, removing the qualifying service requirements for unpaid parental leave and paternity leave. On 1 July 2025, a comprehensive review of all parental leave and pay rights in Great Britain was launched. The review is expected to run for 18 months, so more changes likely in the future.

Mamma Mia! Here We Go Again and again

As for 2025 judicial guidance on pregnancy and maternity discrimination:

The concept of “judicial notice” allows a tribunal to accept widely recognised facts without requiring specific evidence (so no need to prove a recognised fact over and over again). The "childcare disparity" is a recognition that more women than men carry the majority of childcare responsibilities. In Marston (Holdings) Ltd v Perkins [2025] EAT 20, the EAT remind us that although tribunals can take judicial notice of the childcare disparity, it does not necessarily mean that group disadvantage is automatically proved without a proper assessment. For example, night work is more likely to put women as a group at a disadvantage, because of the absence of night-time childcare, than a requirement to attend the office one day a month with advanced notice as in this case.

In Eddie Stobart Ltd v Graham [2025] EAT 14, the EAT set out guidance for assessing injury to feelings awards in pregnancy and maternity discrimination cases. Relevant factors include:

• whether the discrimination was "overt";
• the existence of ridicule or exposure (played out in front of colleagues);
• asymmetry of power, influence and information; and
• experiencing such discrimination detracts from the joy associated with birth resulting in a greater relative diminution in happiness that merits recompense.

Arranging Mary Poppins

The right to time off to care for a dependant has resulted in remarkably little case law. But this year we were reminded this right does not give employees the right to take time off to provide personal care for a sick dependant, "beyond the reasonable amount necessary to enable them to deal with the immediate crisis". How long that period may be will depend on the circumstances of the individual case. In this case the employee had a right to take some time to make arrangements for the care of his vulnerable mother. However, section 57A Employment Rights Act 1996 did not give him the right to take time off work to provide care for her himself for a lengthy period of time (Ghebrehiwt v Wilson James Ltd [2005] EAT 59).

Status

Return to the Forbidden causation test

In Augustine v Data Cars Ltd [2025] EWCA Civ 658, the Court of Appeal considered the correct approach to causation in claims for less favourable treatment under The Part Time Workers Regulations (Prevention of Less Favourable Treatment) Regulations 2000. In particular, whether a worker's part-time status must be the sole reason for the less favourable treatment.

Despite the view of the majority of the Court of Appeal that the correct test should be whether part-time status was an effective cause of the treatment (on which basis the claimant would succeed). However, the Court considered itself bound by the earlier judgment of the Scottish Court of Session (equivalent to the Court of Appeal) in McMenemy v Capita Business Services, which held the test was only if the treatment was solely for the reason of being a part-time worker. On that basis the claim failed.

Given the strong steer in this case that the Court of Appeal considered McMenemy wrongly decided, it is unsurprising that an appeal to the Supreme Court is now pending.

Rent a pilot

In Lutz v Ryanair DAC and anor [2025] EWCA Civ 849 the Court of Appeal agreed that Ryanair's pool of contracted pilots were not self-employed but in fact employed by an aviation recruitment company who had insisted they set up individual personal services companies when looking at the reality of the arrangements. Since the pilots were not in business on their own account, they were being supplied to Ryanair as agency workers.

The pilot in this case was supplied to Ryanair for a five-year fixed term. This meant he was being supplied to work temporarily. "Temporarily" does not mean short term. Those placed indefinitely (meaning open-ended in duration) are not placed "temporarily" and are therefore outside the scope of the Agency Workers Regulations 2010. But if there is an express end date (other than a terminable on notice clause) for an assignment, then the supply will be "temporary", even if it is for a number of years.

The Producers of a list or and an agency?

The Employment Agencies Act 1973 (EAA) defines "employment agency" as "the business… of providing services….for the purposes of finding employment…"". Despite this wide definition, there has been little case law exploring its boundaries. Entities deemed to be employment agencies are subject to a range of regulatory requirements and oversight by the Employment Agency Standards Inspectorate. These restrictions include when the agency may impose charges on work seekers.

The Inspectorate has historically favoured a broad interpretation, including job listing publications and websites. However, in Equity and others v Talent Systems Europe Ltd (t/a Spotlight) [2025] EWHC 2254 (KB), the High Court has held that a talent company providing a subscription-based online directory for performers was not an employment agency under s13(2) of the EAA. Instead, it was an industry-valued marketing and promotional tool for performers, allowing them potential exposure to hirers. An appeal is due to be considered by the Court of Appeal in December 2026.

Whistleblowing

Wicked disagreement

A few years ago, the Court of Appeal in Timis and Sage v Osipov and ors [2018] confirmed that there is no obstacle to an employee recovering compensation for "dismissal consequent on detriment" via a claim under s47B ERA with the employer being vicariously liable for the actions of a wrong-doing co-worker (subject to any reasonable steps defence). The concept of "dismissal consequent on detriment" has been controversial and that controversy continued last year with two conflicting EAT judgments:

• In March 2024, the EAT in Wicked Vision Ltd v Rice considered that Osipov was only binding authority in relation to a co-worker's individual liability and not in relation to an employer's vicarious liability. The EAT therefore concluded in that case that the vicarious liability claim was barred by s47B because the alleged detriment amounted to a dismissal ('Osipov light').
• However, in August 2024, a differently constituted EAT in Treadwell v Barton Turns Development Ltd held that a claimant can claim that their employer is vicariously liable under s47B for the act of a co-worker for the "detriment of dismissal". Applying Osipov, all that s47B excludes is a claim against the employer in respect of its own act of dismissal ('Osipov full').

This year in the conjoined appeal, Rice v Wicked Vision Ltd and anor case (Protect intervening) [2025] EWCA Civ 1466, we eagerly awaited the Court of Appeal revisiting the issue. The Court of Appeal has now reluctantly upheld the 'Osipov full' interpretation, meaning that it's open to a claimant to bring both a section 103A unfair dismissal claim against the employer and also a claim for dismissal consequent on detriment under s47B with the employer being vicariously liable for actions of a wrong-doing co-worker (subject to any reasonable steps defence).

The Court of Appeal reached this conclusion rather begrudgingly. The Court considered itself bound by its earlier Osipov judgment despite it no longer agreeing with its reasoning. In the words of the Court of Appeal: "had we been free to depart from that decision, which we are not, we would have done so, as we respectfully disagree with its interpretation of the legislation". In the judicial world, there is no harsher criticism than "respectfully disagree"!

Never has the writer read a judgment that spends more time articulating the reasons weighing against its decision than those in support of it. No doubt a further appeal to the Supreme Court is the on the cards.

The Phantom of the employer

If a worker who, in accordance with an authorised procedure, makes a qualifying disclosure to a person other than their employer, it is to be treated as making the qualifying procedure to the employer (section 43C(2), ERA). The intention behind this provision is to enable an employer to designate a person or body as having authority to receive qualifying disclosures, and the legal effect of a disclosure made in accordance with such designation will be the same as that of a disclosure made directly to the employer.

This year in Chase v Northern Housing Consortium Ltd [2025] EAT 104, an employer instructed counsel to investigate specific allegations of wrongdoing and report their findings. If, during this process, a worker makes allegations that qualify as protected disclosures, the EAT considers that the investigation would generally constitute a "procedure authorised by the employer" for the purposes of section 43C(2). Where the disclosure is made in the context of a process which has been established by the employer for workers to raise concerns or to have complaints examined or investigated, it is generally reasonable to expect such disclosures to enjoy the same protection as ones made directly to the employer.

Whistleblowing Down the Wind

Also, on the whistleblowing front this year we learnt:

1. An innocent senior manager who took the decision to dismiss a whistleblower could not be held personally liable for protected disclosure detriment under section 47B(1A) ERA due to potential tainted information (Henderson v GCRM and others [2025] EAT 136).
2. Reasonableness of a belief can shift over time. In Argence-Lafon v Ark Syndicate Management Limited [2025] EAT 124, the EAT held that a tribunal had been entitled to find only early statements alleging fraud were protected disclosures. However, after a very thorough investigation by the employer into the alleged fraud (which included two separate, independent expert investigations), it became unreasonable for the employee to persist in alleging fraud.
3. The Court of Appeal has confirmed that whistleblowing protection only extends to either workers or applicants for a post with an NHS employer (due to specific provisions). Generally, external job applicants do not have protection (Sullivan v Isle of Wight Council [2025] EWCA Civ 379).
4. The commencement of arbitration proceedings by an employer against a whistleblower could constitute a detriment under s47B ERA and Judicial Proceedings Immunity does not attach to the act of initiating such proceedings (Rogerson v Erhard-Jensen Ontological /Phenomenological Initiative Ltd [2025] EWCA Civ 1547.)

Trade unions

Company list

In a long-running battle, the Court of Appeal has held this year that the Employment Relations Act 1999 (Blacklists) Regulations 2010 (which render it unlawful to compile or use a list of persons who have taken part in trade union activities with a view to discriminating against them) confer protection on those who have taken part in industrial action (Morais v Ryanair DAC [2025] EWCA Civ 19).

In the Court's view, the definition of "activities of trade unions" had to be given its natural meaning, which covers participation in a strike. Of particular note, the Court also held that the protection extends to all official industrial action (action that has been organised or endorsed by a trade union) regardless of whether the trade union itself benefits from immunity (for example loss of immunity due to non-compliance with balloting notice requirements).

This judgment confirms that employers cannot penalise striking employees by putting them on a “prohibited list” in order to discriminate against them. But it is important to note that the current position in relation to subjecting workers to a detriment short of dismissal for participating in industrial action under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) differs.

Under TULR(C)A, protection from detriment short of dismissal only applies in relation to "taking part in trade union activities" which does not extend to protection from detriment short of dismissal for participating in lawful strike action. For now, the meaning of "detriment" for taking part in 'trade union activities’ under the Blacklisting Regulations is much broader than the meaning under TULR(C)A, a position that will be equalised under the ERB.

TUPE

The Book of Moreman

For there to be a service provision change, immediately before the change, under TUPE, there must be an "organised grouping of employees" situated in Great Britain, whose principal purpose is carrying out of the relevant activities on behalf of the client.

Back in 2012 in Eddie Stobart Ltd v Moreman and others, the EAT held that, to constitute an "organised grouping", it is not enough that employees carry out the majority of their work for a particular client. Rather, employees must be organised by reference to the requirements of the client and be identifiable as members of that client's team.

This year, the EAT in Mach Recruitment Ltd v Oliveira [2025] EAT 107 added that there does not need to be a "literally conscious decision to segregate a particular group". It is enough that the claimant consistently operated with the same group of employees without more. The absence of evidence of a conscious or deliberate decision to allocate a particular group of employees was not fatal to the claim. Nonetheless, it remains the case that the employees need to be organised in some sense by reference to the requirements of the client.

Also on the TUPE front we have learnt that:

• A transferor's vicarious liability for torts (legal wrongs) committed by its employees prior to a TUPE transfer, do not pass to the transferee.
• Under an exception in TUPE (reg 8(7)), the automatic transfer of contracts of employment is excluded where the transferor is the subject of "bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor". The EAT has confirmed that insolvency proceedings meeting the requirements of Reg 8(7) may be instituted when the court appoints a provisional liquidator to a company, not only when a winding-up order is made (Secretary of State for Business and Trade v Sahonta and ors [2025] EAT 166.

Wages

The Contractual Commitments

The EAT has reminded us of the importance of clear wording in employment contracts where the nature of the work under the contract is variable to avoid overtime disputes. The EAT held that a lorry driver was not entitled to be paid for additional hours worked above the intended weekly average specified in his contract. While his contractual normal working hours were 47 hours per week over five shifts, it was subject to a requirement to work additional hours when necessary to ensure proper performance of his duties on each shift. The contracted clearly provided that overtime pay was only available when a driver worked an additional full or half shift.

The contractual provision for flexibility did not give rise to an entitlement to additional pay. The contract provided basic pay for working five shifts of variable length each week. Neither business efficacy nor the unexpressed intention of the parties justified the implication of a term that provided pay for hours worked beyond intended normal working hours other than when the express overtime provisions were engaged (Brake Bros Ltd v Hudek [2025] EAT 53).

Come From far Away

We have had a stark reminder that "working time" under the Working Time Regulations (WTR) is not the same as "salaried hours work" or "time work" for the purposes of the National Minimum Wage Regulations 1999. In Taylors Service Ltd (dissolved) and another v The Commissioners for HM Revenue and Customs [2024] EAT 102, the EAT has held that time spent ‘just’ travelling from home to a place of work is not 'time work' for national minimum wage purposes. The requirement for poultry workers to travel to multiple farms — potentially up to four hours — using the employer's minibus did not, in itself, constitute as 'work' for NMW purposes. As pointed out by the EAT, to the extent that this created an injustice, owing to the sheer length of the travel time in this case, that could only be rectified by Parliament through legislation.

Redundancy

Avenue HR1

The ERB will bring significant future changes to collective consultation thresholds and also double the period for which a protective award can be made for failure to collectively consult (see Employment law changes 2025 and beyond). However, don't forget about the 2025 changes:

1. Since 1 December 2025, employers can only notify the Secretary of State by way of an advance notification of redundancies by using the digital HR1 form. E-mailed Word documents are no longer accepted. Point to note, users must save or print the summary page as a PDF before submission otherwise they will not have a copy to provide to trade union or employee representatives.
2. Since 20 January 2025, if a successful claim is brought for a protective award for failure to inform and consult on collective redundancies in a "fire and re-hire" situation, an employment tribunal can increase or reduce the award by up to 25% if a party has unreasonably failed to comply with the statutory Code of Practice on Dismissal and Re-engagement or another applicable code of practice.

My Fair Redundancy

From the EAT, we are reminded that as part of a fair redundancy process, the employer must consider whether there is suitable alternative employment. The duty includes making reasonable efforts to look for alternative employment within its, or an associated employer's business, which will usually require the employer to take proactive steps to assist the employee. The employer is not obliged to create alternative employment for redundant employees where none already exists. However, they should make sure that they undertake a sufficiently thorough search for alternative employment (Hendy Group Ltd v Kennedy [2024] EAT 106).

Unfair dismissal

Chitty Chitty Bye Bye

On the unfair dismissal front we are reminded of:

Importance of clear conduct policies and training

Under the relevant Acas Code, an employer’s behavioural expectations of its staff, including any examples of gross misconduct, should usually be set out clearly in a written code of conduct or disciplinary policy and/or explained to its staff in training. In Hewston v Ofsted [2025] EWCA Civ 250 the Court of Appeal held that an employment tribunal had been wrong to find that a school inspector's dismissal for a single innocent incident of physical contact with a pupil during a school visit was fair, in the absence of a clear written policy or any training on the matter (there was no suggestion of improper motivation). In addition, employers cannot rely on an employee's failure to admit wrongdoing or show contrition for alleged misconduct that falls short of gross misconduct to 'bump up' the seriousness of the conduct and render a dismissal fair, unless this indicates that there is a real risk that the employee will commit more serious misconduct in the future.

The 'last straw' doctrine in constructive dismissal

Under the 'last straw' doctrine, an employee can resign in response to a series of breaches of contract or a course of conduct by their employer which, taken cumulatively, amounts to a breach of the implied term of trust and confidence. The EAT in Marshall v McPherson Ltd [2025] EAT 100 confirmed that the ‘final straw’ prompting a resignation does not, by itself, need to be a serious breach of contract. What matters is the overall pattern of behaviour and whether it cumulatively amounted to a breach.

Dishonesty in job applications

Deliberately withholding information in a job application form may be found to be dishonest and justify a fair dismissal. In Easton v Secretary of State for the Home Department (Border Force) [2025] EAT 15, an applicant for the position of chief immigration officer completed the employment history section of an application form using years only, thereby concealing a three-month gap following his dismissal for gross misconduct. After he started work, the Home Office discovered the circumstances of his previous dismissal, and he was dismissed for being dishonest in his job application by omitting relevant information. In upholding a finding of fair dismissal, the EAT confirmed the standard by which responses to questions in an employment application process fail to be judged is an objective one and reflect the duty to take reasonable care to ensure that statements of fact, which are likely to be relied upon, are accurate.

Working Time Regulations breach 

An employment tribunal determined that an employee was fairly dismissed after her employer discovered she was working two jobs for the company — covering both day and night shifts at separate locations — following a TUPE transfer. The employee had deliberately concealed the fact that her working hours were in breach of the Working Time Regulations (WTR). The tribunal found the dismissal to be fair because the employee knowingly took part in the illegal execution of the contract. This, together with important health, safety, and public interest reasons behind the WTR restrictions, especially for night workers, supported the decision. The employer had also followed a fair procedure, retaining the employee in the employment position most favourable to her and offering her reduced hours which complied with the WTR in the other role in an attempt to avoid dismissal (Ogumodede v Churchill Contract Services [2025] 9 WLUK 482).

Settlement agreements

The Sound of Disclosure

The use of non-disclosure agreements (NDAs) in settlement agreements has continued to be a hot topic this year.

On 1 August 2025, section 1 of the Higher Education (Freedom of Speech) Act 2023 came into force, preventing higher education providers in England from entering into NDAs in relation to sexual misconduct allegations, or allegations of bullying or harassment.

Also, section 17 of the Victims and Prisoners Act (VPA) 2024 came into force on 1 October 2025, making void any provision in an agreement that purports to preclude a disclosure of information by a victim (or a person who reasonably believes they are a victim) of a crime to:

• Any person with law enforcement functions, for the purpose of those functions being exercised in relation to relevant conduct.
• A qualified lawyer, for the purpose of seeking legal advice about relevant conduct.
• Any individual who is entitled to practise a regulated profession, for the purpose of obtaining professional support from that service in relation to relevant conduct.
• A regulator of a regulated profession for the purpose of cooperating with the regulator in relation to relevant conduct.
• A person who is authorised to receive information on behalf of any of the above persons for the purposes mentioned above.

But more to come, The Victims and Courts Bill when passed will eventually repeal section 17 of the VPAVPA 2024 and replace it with a stronger, simpler protection allowing victims and direct witnesses of crime to disclose information about the conduct to anyone and for any purpose. In addition, the ERB will ban the use of NDA in relation to claims of discrimination and harassment/sexual harassment under the Equality Act 2010.

LTIP Never Dies

In Dixon v GlobalData PLC [2025] EWHC 2156 (Ch) the High Court has found that a former company executive was entitled to a remedy based on proprietary estoppel in relation to a promise that he would retain and be able to exercise his valuable share options after termination of his employment even though the board never formally extended them under the terms of its employee share scheme.

This case underlines the importance of:

• effective record-keeping in relation to employee share plans,
• ensuring board approval is obtained where necessary when negotiating settlement arrangements,
• the need to document board decisions in relation to share plan leavers clearly and unambiguously at the time of leaving, and
• ensuring those records are retained.

Data protection

Into the 'organised filing system' Woods

On 5 February 2025, the Information Commissioner's Office (ICO) published the long-awaited finalised guidance for employers on keeping employment records covering (1) collecting and keeping employment records and (2) using employment records. Also on 28 March 2025, the ICO published some helpful guidance on anonymisation and pseudonymisation.

Following an extended journey of refinement, the Data (Use and Access) Act 2025 was passed into law on 19 June 2025. While many of the Act's provisions are not yet in force, the provisions regarding data subject access requests did come into force on 19 June 2025 - clarifying that an employee is only entitled to data that the employer is "able to provide based on a reasonable and proportionate search". Accordingly, while an employer must make genuine and extensive efforts, it does not have to go so far as to leave no stone unturned.

Think before Singin' in the Raine

From the courts we have a salutary lesson on ensuring you know who you are talking to. In Raine v JD Wetherspoon plc [2025] EWHC 1593 (KB), the High Court reminds employers that oral disclosures, when originating from a structured filing system, can be classified as data processing under the UK GDPR. In this case, an employee's estranged abusive former partner telephoned her employer claiming to be a police officer who needed to contact her urgently. Her phone number, which was kept in a personnel file marked "Strictly Private and Confidential", and kept in a locked filing cabinet, was disclosed in breach of the employer's internal policies. While the individuals who disclosed the information thought they were speaking with a police officer they should have verified who they were communicating with. The employer was ordered to pay £4,500 in damages.

Tribunal procedure

Tribunals and the Amazing Technicolor Dreamportal

The Employment Tribunal Procedure Rules 2024 came into force on 6 January 2025, while largely maintaining the substance of previous the rules, they introduced key procedural and administrative changes to facilitate digital operations and efficiency. Since 21 May 2025, online submission via the HMCTS portal is the primary method for filing claims (ET1) and responses (ET3). Email and paper submissions are only permitted in exceptional circumstances. Teething issues abound, but the tribunals are now well and truly embracing the digital age.

The Lyin' King

R (Ayinde) v Haringey LBC

Beware the blind use of AI when seeking caselaw in support of a claim. The tribunals and courts have had some instances in which AI has produced plausible sounding cases that either simply do not exist or quote a fictious passages from a genuine source. In R (Ayinde) v Haringey LBC [2025] EWHC 1383 (Admin) the High Court warns us to check the accuracy of Generative AI outputs or risk serious sanctions, including contempt of court.

Commerzbank AG v Ajao

In a rare example, the High Court in Commerzbank AG v Ajao [2025] EWHC 2904 (KB) held that a former employee was in serious contempt of court for making false statements of truth. The employee gave false evidence under oath and interfered with the due administration of justice in employment tribunal proceedings which he brought against his former employer and vulnerable colleagues in relation to a fabricated sexual harassment claim. Having applied the criminal standard of proof, Mr Ajao was sentenced to 20 months' imprisonment and ordered to pay £150,000 towards the employer's legal costs. The Court of Appeal will hear Mr Ajao's appeal on 16 December 2025

Legally Privileged

Legal Advice Privilege (LAP) protects confidential communications between a client and lawyer, made for the dominant purpose of seeking or giving legal advice. This year we are again reminded that any exception to the LAP is only permitted in exceptional circumstances under the 'iniquity principle'. Correspondence seeking advice over the possibility of dismissal is within the normal scope of a professional engagement. It does not amount to fabricating a false position or acting in an underhanded or iniquitous way, amounting to a sham. As such LAP continued to apply. Employers should continue to feel comfortable discussing tricky areas of employment law with their advisers, including consulting advisers on possible decisions to dismiss employees (Shawcross v SMG Europe Holdings Ltd [2025] EAT 92).

Ghost Orders

Tribunals can make an order preventing or restricting the public disclosure of any aspect of proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention Rights of any person. Before making such an order, the tribunal is required to give full weight to the principles of open justice and freedom of expression. Indeed, the perceived orthodoxy is that the principle of open justice is of paramount importance and derogations from it can only be justified when strictly necessary. This year we have had three important cases in this regard:

1. F v J [2025] EAT 34

The EAT held that a tribunal had set the bar too high when refusing to grant a claimant's application for an anonymity order in his disability discrimination claim. The open justice principle must be balanced against the protection of an individuals’ rights, particularly in relation to sensitive personal information.

2. XY v AB [2025] EAT 66

The EAT upheld a permanent anonymity order made by a tribunal in a case where the claimant had withdrawn her claim before trial but had continued to make allegations against the respondent, including writing an email to his new employer falsely claiming she had won her sexual harassment case against him. In a lengthy judgment the EAT helpfully set out 25 principles on the approach tribunals should take when considering such orders.

3. A v B [2025] EAT 167

The EAT applied principle two of the 25 principles set out in XY v AB, namely that "principles of open justice still apply, even if a case has been settled and there has been no determination on the merits". Adding that while the principles of open justice still apply, the fact that there would be no trial meant that the open justice principle was less in play.

Six Twelve

Since 1 December 2020, the Acas Early Conciliation (EC) period has been a maximum six weeks with no possibility of an extension. To ease pressures on Acas, since 1 December 2025 the EC period has been extended to 12 weeks. While Acas struggles to meet demand, this year we have been reminded:

1. Failure to comply with the EC requirement deprives the tribunal of jurisdiction. As it is a jurisdictional bar, there is no judicial discretion to allow a claim to proceed. However, if there are other existing related proceedings for which the EC requirement was complied with, the claim could potentially be added by amendment to those existing proceedings (Reynolds v Abel Estate Agent Ltd and others [2025] EWCA Civ 1357).
2. Any part of an EC period which pre-dates the cause of action (the effective date of termination in an unfair dismissal case) does not extend the limitation period (Raison v DF Capital Bank Ltd [2025] EAT 86