Welcome to our Summer edition of CL Q.E.B
- Constantine Law
- Jul 4
- 9 min read
Probably the most talked about subject in employment circles since our last edition is the Supreme Court ruling in For Women Scotland v The Scottish Ministers which was handed down in April. Although not an employment case, the ruling, which held that a Gender Recognition Certificate does not change a person’s legal sex for the purposes of the Equality Act 2010, does have significant implications for employers. The Equalities and Human Rights Commission (EHRC) is still formulating guidance on how employers can apply the ruling in the workplace, such as single sex toilet and changing facilities, while not falling foul of discrimination legislation designed to protect women and transpeople. Due to deliver their guidance in June, the fact that it is delayed indicates that balancing the interests of all parties is not straightforward. Partner, Eliza Nash, has covered all the salient points relating to this decision in her article, which you can read here.
As the Employment Rights Bill continues its stately progress through Parliament, there have been a few changes which we cover below and you can review the Bill’s newly published roadmap here. As ever, if you need any help or advice in relation to any employment issues, please do not hesitate to get in touch with your usual Constantine Law contact.
Employment Rights Bill: progress
Protective Award
The government intends to double the maximum protective award for collective redundancies meaning that instead of 90 days gross pay as compensation, employers could be hit with 180 days’ salary as compensation. This could be in force in April 2026.
Tribunal time limits
Section 149 of the ERB plans to extend the limitation period for most employment claims from three to six months. The impetus for the change stems from the desire to give those who would otherwise struggle to lodge a claim within the current timeframe for, say, health reasons, more time to do so. Employers would do well to expect an increase in claims so immediate actions should include reviewing and updating all grievance policies and appeal procedures; consider extending insurance cover in the event of more claims; and increase the minimum time for keeping HR records.
Statutory Sick Pay (SSP)
All the indications are that the day 1 right to SSP for all those earning below the Lower Earnings Limit (£125 per week) will come into force in April 2026. This means that all eligible employees will be entitled to the SSP flat rate or 80% of average weekly earnings, whichever is lower, from day one of their sick leave.
Fire and re-hire
Making it automatically unfair to dismiss an employee for refusing a contractual change may be in force by October 2026. The only scenario permitted where dismissal is an option, is if the business is in imminent danger of insolvency – and even then, the reasonableness test will need to be passed. Therefore employers need to consider including variation clauses within contracts of employment or, more drastically, consider if some roles would be better outsourced to agencies.
Parental leave and Pay consultation
The UK Government has launched an 18-month review of the parental leave and pay system to modernise it and better support working families, alongside reforms in the Employment Rights Bill. Covering all types of leave—including maternity, paternity, adoption, and shared parental—the review aims to improve outcomes in maternal health, labour market participation, child development, and childcare flexibility. It will also address fairness across employment types, economic impacts, and broader social goals like reducing child poverty and gender inequality. A public call for evidence is open until 25 August 2025.
Is the Equality Act responsible for a rise in racial discrimination claims?
Constantine Law Managing Partner, John Hayes, was interviewed by Rod Liddle on Times Radio, in response to research by the Don't Divide Us campaign which found that the number of claims in the Employment Tribunal involving race discrimination had tripled in the last seven years, although there was no corresponding rise in the level of success of these claims. John refutes this claim by the group, stating that the Equality Act was a consolidating piece of legislation, which didn't, in fact, introduce much new law. You can listen to part of the interview here.
Preventing sexual harassment in the workplace
Seven months on from the introduction of a new positive duty on employers to prevent sexual harassment in the workplace, Senior Associate, Eleanor Rogers writes in Solicitors Journal about what effect this is having on the legal landscape, what this means for employers in practice, and what the potential consequences of failure to comply might mean. You can read her article here and for further details of what employers need to know to comply with the law, take a look at our guide to the changes.
Apprenticeship funding changes
From January 2026, the Department for Education announced that level 7 apprenticeships (the equivalent of a post-graduate qualification) will only be funded for apprentices aged 16-21 and those under 25 who have an Education, Health and Care Plan or had been in care. Those apprentices who are already on a level 7 apprenticeship will continue to be funded. The DoE justified its decision by stating the change will allow additional funds to be channelled towards those starting on the apprenticeship ladder. If you are an employer offering level 7 apprenticeships, you will need to plan for these changes.
Mandatory ethnicity and disability pay gap reporting
The Government’s consultation on introducing mandatory ethnicity and disability pay gap reporting closed on 10 June. It sought views on how such a reporting framework would work and whether it would achieve the desired objective. In addition to requiring employers with more than 250 employees to report on pay differences, as per the current gender pay gap reporting requirements, the government also wishes to capture additional information using the same mechanism, including a breakdown of their workforce by ethnicity and disability, including those who choose ‘not to say.’ The Government response is expected in the Autumn so any changes are unlikely to be imminent; nonetheless, for relevant employers, this might be the time to start considering how to capture the required data, and how to phrase the questions to be asked.
Case law
Teacher’s expression of Christian beliefs not discriminatory
Summary: This long running employment case has finally come to an end with the Supreme Court refusing permission for Farmor’s School to appeal against the Court of Appeal ruling that Mrs Higgs’ dismissal for gross misconduct was unfair and a disproportionate response to an expression of protected beliefs. Mrs Higgs was dismissed from her position at Farmor’s School in 2018 following a report from a parent that she had re-posted comments interpreted as transphobic and homophobic on her private Facebook page. She said she had done this in support of her Christian beliefs regarding sex education in primary schools and that marriage can only be between a man and a woman. It was accepted that she had not expressed her personal views while at work, nor had she ever shown any discriminatory behaviour towards any of the pupils in her care.
The Court of Appeal’s ruling noted that dismissal for expressing a protected belief that others might find objectionable must be objectively justified. In this case, it was not, and dismissal was a disproportionate sanction. Although the school might consider Mrs Higgs’ reposting of comments in support of her Christian beliefs to be discriminatory and potentially inflammatory, the school had not suffered any reputational damage. Employers must tread carefully when reviewing allegations of discriminatory behaviour and this case underlines the importance of assessing all such cases objectively and understanding what harm, if any, has been done.
Job applicants are not protected by whistleblowing legislation
Summary: The Court of Appeal agreed with the ruling of the EAT, namely that a job applicant was not afforded the same protection as an employee when making protected disclosures. In this case, Ms Sullivan, had applied for a financial role with the Isle of Wight Council. She was interviewed but was not appointed. Shortly afterwards, she applied for another, similar, role but again was unsuccessful. Despite an apparently cordial exchange between her and the respondent after each interview, Ms Sullivan subsequently raised protected disclosures regarding financial irregularities relating to a charity of which one of her interviewers was a trustee. She also alleged that she had been subjected to a verbal assault, questioning her mental stability, during the interview.
The Council instigated an investigation in accordance with their policy and procedure but found no evidence to uphold her claim. As she was not an employee, she was refused the right to appeal. The Employment Tribunal heard that Ms Sullivan contended that her rights under Articles 10 and 14 of the ECHR were being contravened, as she should have been protected by whistleblowing legislation in the same way as NHS job applicants were. The ET dismissed her claim on the basis that she had not been treated differently to other job applicants and that NHS job applicants were in a different position due to patient safety concerns. Both the EAT and the Court of Appeal agreed with the ET ruling.
This is a useful ruling for employers that external candidates will not have the protections of whistleblowing where they are not employees, workers or in specific sectors like the NHS.
ET calculates compensation payments incorrectly
Wealmoor appealed against aspects of the compensatory award received by their former employee, Mr Poniatowski, who had successfully claimed disability discrimination, unfair dismissal and wrongful dismissal, after Wealmoor had terminated his employment following an extended period of sickness absence. Mr Poniatowski’s absence had been caused by a number of health issues including depression and lower back pain which amounted to a disability under the Equality Act.
Although Mr Poniatowski had found alternative employment and had mitigated some of his loss of earnings, the ET had decided not to take this into account when determining the amount of compensation due. In addition, it grossed up the full amount of the award, not just the taxable portion relating to dismissal as would have been the correct approach on the basis that awards relating to pre-dismissal conduct are not taxable. The EAT allowed the appeal on these two points and remitted the case back to the ET to reassess.
Disability discrimination claim fails in face of correct disciplinary procedure
An apprentice mechanic employed by the Swindon branch of Scania was dismissed for gross misconduct after displaying threatening behaviour towards his fellow apprentices after he found that his lunch box had been tampered with. He brought a claim for disability discrimination under s.15 of the Equality Act 2010, unfair dismissal, harassment as a result of disability, failure to make reasonable adjustments, and for breach of contract, all of which were dismissed by the Employment Tribunal.
Mr Hayes-Forester, who had been diagnosed with ADHD as a child, was in the final year of his apprenticeship when the lunch box incident occurred. He had already received a final written warning following his aggressive reaction towards another apprentice who had wrapped his tools in electrical tape as a prank. On discovering that his lunch had been interfered with so as to make it uneatable, Mr Hayes-Forester sent a series of threatening messages to the fellow apprentice he suspected was responsible. Although Scania acknowledged that pranks and banter were common among the apprentices, in this case they believed that the tenor and content of the messages were highly disproportionate and started disciplinary proceedings against Mr Hayes-Forester. They commissioned an occupational health report into Mr Hayes-Forester’s ADHD which confirmed that this would contribute to his impulsive behaviour. Mr Hayes-Forester admitted that his behaviour was unacceptable, and he apologised, citing his ADHD as a major contributory factor, Nonetheless, he was dismissed.
The Tribunal dismissed all his claims, finding that his dismissal was a proportionate means of achieving the legitimate aim of protecting staff from aggressive, threatening and abusive language. The Judge found that although Mr Hayes-Forester’s ADHD contributed to his actions, it did not make him any less responsible for his behaviour which he knew was wrong. This case demonstrates that if employers have the correct policies and procedures in place covering workplace behaviour and disciplinary investigations, they can mount an effective defence against discrimination claims.
Employer’s appeal to reject overtime payment succeeds.
Mr Hudek was a lorry driver who was required to work five shifts a week of nine hours. He claimed unpaid wages under s 13 of the ERA 1996 because he worked more than his contracted weekly hours and believed he was entitled to pro rata payments for the additional hours he worked. His contract stated that overtime was only paid if at least half a shift was worked. The original Tribunal held that Mr Hudek’s contract of employment provided for an averaging of his working hours and that it was an implied term that if averaging out took place in reasonable period, he would be paid for all additional hours worked above the intended average. Brake Bros’ appeal was successful on the grounds that, properly construed, the employment contract entitled Mr Hudek to a basic salary for working five shifts of variable length. The Court found that there was no implied term that he would be paid for hours worked over his normal working hours other than when express overtime provisions prevailed.
This is a useful case for employers who operate on a shift basis and where hours can fluctuate. It is also a reminder to ensure that express terms should clearly define normal working hours, overtime conditions, and payment mechanisms to avoid disputes or misinterpretations. If flexibility in working hours is required, it should be explicitly stated in the contract, along with any averaging mechanisms or limits. Employers should review contracts periodically to ensure they meet with business needs.
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