2025 outlook: employment law cases to keep on your radar

January 22, 2025

After a year filled with notable employment cases, 2025 is set to bring more significant decisions from the tribunals and courts. Here, we outline a few rulings that could potentially reshape key areas of UK employment law.

Wicked Vision v. Rice

Background

The Employment Appeal Tribunal (EAT) considered whether an employee could bring a claim of whistleblowing detriment against their employer when they are dismissed by a co-worker for whom the employer is responsible. The EAT found against the claimant whose upcoming appeal, scheduled to be heard later this year, seeks to overturn the EAT's ruling that such a claim was prohibited.

Under section 47B(1) of the Employment Rights Act 1996 (ERA 1996), a worker is entitled not to be subjected to detriment on the ground that they have made a protected disclosure. This protection covers detriment by the employer, the worker's colleagues or an agent of the employer (sections 47B(1) and (1A) of the ERA 1996). If a detriment is committed by a colleague, the employer is responsible unless it can establish an "all reasonable steps" defence (sections 47B(1B) and (1D) of the ERA 1996).

If a worker who is also an employee is dismissed solely or principally because they have made a protected disclosure, they will have a claim for automatically unfair dismissal (section 103A of the ERA 1996). However, where the detriment is dismissal, an employee cannot bring a claim for detriment under section 47B(1) of the ERA 1996. The employee must instead raise a claim for automatically unfair dismissal under section 103A of the ERA 1996 to prevent duplicate claims for the same incident. In contrast, a worker who is not classified as an employee is permitted to file a detriment claim in connection with the termination of their engagement because they cannot claim unfair dismissal.

In the earlier decision of Timis and another v. Osipov [2018], the Court of Appeal found some nuance to the basic principle that an employee cannot rely on a dismissal to bring a "detriment" claim. It held that two non-executive directors who dismissed a whistleblowing co-worker were personally liable for the loss that flowed from the detriment of dismissal. This represented a shift from the previously understood position that section 47B(2) excluded dismissal-related loss from the scope of detriment claims under section 47B. The decision gave dismissed whistleblowing employees an alternative means of claiming dismissal damages against fellow employees. That can be particularly useful if the employer is insolvent.

In Wicked Vision, it was argued that the company owner, Mr Strang, dismissed Mr Rice for blowing the whistle, that he was therefore liable for the detriment of dismissing the claimant (as in Osipov) and that the employer was vicariously liable for that claim against the owner. The Employment Tribunal (ET) allowed the claimant to amend his claim to include this argument.

On appeal, the EAT decided that the ET had erred and that this additional claim against the employer was prohibited by section 47B(2) of the ERA 1996, as the detriment took the form of dismissal.

Central to this decision was the fact that the colleague whose actions the claimant relied upon (the owner) was essentially the same person as the employer itself. A claim against the employer for automatic unfair dismissal was therefore effectively already a claim against Mr Strang. The EAT went on to hold that Osipov could only be applied where the claimant was unable to bring a dismissal claim against their employer.

The EAT in Wicked Vision also pointed out that a different EAT had reached a conclusion which contradicted Osipov in Treadwell v. Barton Turns Development Ltd. That EAT refused to allow a similar amendment on the basis that the legislation prevents an employee claiming detriment against their employer when the detriment in question is their dismissal (please see our blog article on the Treadwell case here).

The decision has been appealed to the Court of Appeal and is due to be heard in July 2025. This will be an important decision on liability for whistleblowing dismissals.

Higgs v. Farmor's School

Mrs Higgs filed claims of discrimination and harassment on the grounds of religion or belief. The ET rejected her claims, concluding that the school's actions were driven by concerns that a reasonable person reading her posts might perceive her as holding transphobic and homophobic views, rather than being based on her protected beliefs. Mrs Higgs appealed to the EAT, which concluded that the ET had failed to assess whether the school's actions were necessary and had not applied the correct proportionality test, leading to the case being sent back to the ET for reconsideration.

Due to the complexity of cases involving the right to freedom of religion, belief and expression, the EAT cautioned against establishing broad guidelines for such cases. However, its "basic principles" provide a useful and relatively detailed framework for employers, employees and tribunals when assessing the proportionality of interfering with a claimant's right to manifest their beliefs. Given the challenges employers face in balancing competing rights in the workplace, the EAT's guidance will be valuable and the outcome of the remitted ET hearing will be anticipated. The case has been remitted to the ET and it will be interesting to see how the EAT's basic principles are applied.

Augustine v. Data Cars Ltd

The EAT ruling in Augustine v. Data Cars Ltd shed light on the complexities of interpreting and applying the Part-Time Workers Regulations. The EAT needed to decide whether a flat-rate "circuit fee" imposed by a minicab firm on both full-time and part-time drivers amounted to less favourable treatment of part-time workers and, if so, whether this treatment was solely due to the workers' part-time status. The ET ruled that part-time workers had not experienced less favourable treatment, as both part-time and full-time workers were required to pay the fee. On appeal, although finding that the outcome was correct, the EAT disagreed with the ET's reasoning. Following the ruling in McMenemy v. Capita Business Services (2007), the EAT determined that the less favourable treatment must be solely due to part-time status in order for the claim to succeed. The EAT agreed that the claimant's part-time status was not the sole reason for the imposition of the circuit fee, leading to the dismissal of the claim.

The decision has been appealed to the Court of Appeal and is due to be heard in July 2025. It will be significant for a wide variety of part-time claims.

For more on this case, please see our blog article here.

For Women Scotland Ltd v. Scottish Ministers

The Supreme Court's decision is awaited on the important issue of who is a "woman" under the Equality Act.

For Women Scotland (FWS) applied for a judicial review of the Scottish Government's Gender Representation on Public Boards (Scotland) Act 2018 (2018 Act), which seeks to increase female representation on Scottish public boards to 50%. The challenge centred on the definition of "woman" in the 2018 Act. The statutory guidance issued by the Scottish Government in April 2022, which must comply with the Equality Act 2010 (Equality Act), specifies that "woman" encompasses individuals whose "acquired gender is female" as per the Gender Recognition Act 2004.

FWS contended that the definition of "woman" in the 2018 Act differed from that in the Equality Act and that this change exceeded the Scottish Government's power over reserved matters. The judge at first instance ruled that the 2018 Act did not redefine "woman" but expanded that term to include transgender women for the purposes of its positive action measures.

On appeal, the Court of Session determined that the Equality Act treats sex and gender reassignment as separate protected characteristics, holding that the definition of "woman" in the Equality Act refers specifically to females, with gender reassignment being a distinct characteristic. The case was subsequently appealed by FWS and heard by the Supreme Court on 26 and 27 November 2024. Organisations such as the Equality and Human Rights Commission (EHRC) and Amnesty International UK intervened in support of the Scottish Government's argument that "sex" in the Equality Act means "sex as modified by a gender-recognition certificate" with the view to combatting a deterioration of rights for trans people in the UK. On the other side, Sex Matters and a coalition of three lesbian rights organisations intervened in support of FWS's argument that "sex" in the Equality Act should be interpreted in line with its biological meaning.

The two-day hearing also involved discussions on the implications of redefining "male" and "female" as "certificated male" and "certificated female". FWS argued against any such change, stressing the need for a sex-based legal interpretation to prevent discrimination. On the second day, the Scottish Government defended the Gender Recognition Act's approach and responded to challenges about its implications for maternity rights and sexual orientation, while the EHRC and other intervenors pointed out difficulties with the current legal framework.

There is no firm date for the Supreme Court's decision, but it may be announced in February or March of 2025. If FWS prevails, the Scottish Government will need to revise the 2018 Act in accordance with the judgment. The EHRC will also have to update its guidance on single-sex services, which could influence the public-sector equality duty and public funding. If the Scottish Government succeeds, it will secure rights held by trans women and trans men with gender recognition certificates.