With the UK currently seeing the thermometer rise, this article looks at how employers can manage dealing with hot weather in the workplace.

By working in high temperatures, employers may notice staff have a lack of concentration, there is an increased risk of accident, reduced productivity and an increase in “sunbathing sickies”.

Although there is no maximum working temperature set by the Health and Safety Executive, to minimise the negative side effects employers can take a number of precautions.

 For employees working predominately indoors, employers could consider the following:

• Access to cool water.
• Adequate ventilation.
• An increased number of rest breaks.
• A relaxation of formal dress codes.
• Boost morale by providing low cost treats, such as ice creams.

For employees working outdoors, employers should also consider the direct exposure to sunlight. Precautions can be taken including:

• Modification of the working routine to avoid heavy physical work being undertaken during the most intense hours of sunlight.
• Allowing an increased number of breaks in the shade.
• Workers should be encouraged to prevent exposure to the sun by wearing long sleeves and trousers and/or loose clothing.
• Wearing hats with wide brims or flaps to protect exposure to the neck and ears.
• Encouraging workers to use suncream of a high factor.

Ultimately, by keeping staff cool, motivated and engaged, employers can capitalise on the feel good factor and reduce the impact on absence and productivity.

For further information please contact the Employment Team at Morgan LaRoche  on 01792 776776 or [email protected].

In the wake of the UK Supreme Court’s decision For Women Scotland Ltd v The Scottish Ministers and the Equality and Human Rights Commission’s (EHRC) interim guidance, employers and HR professionals must now navigate a more complex landscape when it comes to supporting trans employees and maintaining lawful workplace practices.

While the legal definition of “sex” has been clarified to mean biological sex for Equality Act purposes, it’s equally important to understand that trans employees remain protected under the characteristic of “gender reassignment”.

This blog explains what this means for your organisation—and how to balance legal compliance with inclusion and good employment practice.

The Legal Landscape: A Quick Overview

What did the For Women Scotland case decide?

The UK Supreme Court ruled that sex, for the purposes of the Equality Act 2010, refers to biological sex—not gender identity. This has significant implications where laws or policies rely on sex-based distinctions, such as single-sex services or roles.

What does the EHRC interim guidance say?

Following the decision, the EHRC issued interim guidance advising public bodies and service providers (including employers, in applicable contexts) to:

• Interpret the characteristic of “sex” as referring to biological sex.
• Continue to uphold protections for trans people under the “gender reassignment” characteristic.

In short: trans employees are still protected from discrimination, but employers must apply sex-based legal distinctions correctly when relevant.

What This Means for Employers and HR Professionals

1. Apply the Correct Legal Definitions

You must now clearly distinguish between:

• Sex – meaning biological sex (male/female).
• Gender Reassignment – a separate protected characteristic that covers people proposing to, undergoing, or who have undergone a process to reassign their gender.

This distinction is crucial in areas such as:

• Gender pay gap reporting
• Occupational requirements (e.g. single-sex roles where lawful)
• Single-sex facilities and services (e.g. toilets, changing rooms, accommodations)

Action: Review all relevant HR and operational policies to ensure the correct application of these terms, especially where “sex” is a determining factor under the law.

2. Support Trans Employees Under Existing Protections

Trans employees continue to have full legal protection against:

• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation

These protections apply regardless of whether a person has a Gender Recognition Certificate (GRC) or has undergone medical transition.

Action: Ensure your internal policies, including your equality and anti-harassment policies, explicitly protect individuals with the protected characteristic of gender reassignment.

3. Audit Policies Involving Sex-Based Distinctions

Where your policies involve sex-based distinctions, such as in the allocation of facilities, dress codes, or job roles, you must ensure:

• They are based on biological sex, in line with the EHRC’s interpretation.
• There is a legitimate aim behind the policy (e.g. privacy, dignity, safety).
• The policy is a proportionate means of achieving that aim.

Example: If your organisation provides single-sex changing rooms based on biological sex, you should also consider offering gender-neutral alternatives to avoid disadvantaging trans or non-binary employees.

Action: Conduct Equality Impact Assessments (EIAs) and document your decision-making.

4. Maintain Confidentiality and Respect in Practice

Even when applying lawful sex-based distinctions, it remains unlawful and unethical to:

• Disclose a trans employee’s history without consent
• Misgender employees
• Deny reasonable adjustments that could accommodate dignity and inclusion

Action: Train line managers and HR staff on how to handle sensitive information with confidentiality and respect, and ensure employees feel safe discussing their needs.

5. Avoid Blanket “Self-ID” Policies in Certain Contexts

Policies that allow people to access services or facilities solely based on self-declared gender identity may not be lawful if they override the rights of others based on biological sex (e.g., in single-sex services where exemptions apply).

Action: Reassess any “open access” policies and ensure they align with both the Equality Act’s provisions and the EHRC’s latest guidance.

6. Continue Fostering an Inclusive Workplace Culture

The legal position does not prevent you from promoting a respectful and inclusive culture. You can:

• Use inclusive language in communications
• Respect preferred names and pronouns
• Celebrate diversity and LGBTQ+ inclusion events
• Support trans employees through workplace transitions

These actions build trust, reduce risk, and improve retention, all while remaining compliant.

Action: Embed inclusion in your organisational culture, while making sure policies reflect the latest legal guidance.

Key Takeaways for Employers

Compliance Area	Employer Responsibility
Sex vs Gender Reassignment	Apply correct legal definitions in all policies and practices
Trans protections	Uphold protections under the Equality Act for those undergoing or proposing to undergo transition
Single-sex facilities and roles	Base decisions on biological sex, with clear legitimate aims and reasonable adjustments
Confidentiality and dignity	Maintain privacy, respectful communication, and trans-inclusive support
Legal defensibility	Conduct and document Equality Impact Assessments and seek legal advice where needed

In For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16, the Supreme Court ruled that the terms “woman,” “man,” and “sex” in the Equality Act 2010 (EqA 2010) are to be understood as referring to biological sex. As a result, the definition of “woman” under the Act does not include trans women with a gender recognition certificate (GRC). Despite this they continue to be protected under the characteristic of gender reassignment or based on their biological (or perceived biological) sex.

The issue initially emerged from a 2018 initiative by the Scottish Government aimed at increasing female representation on public boards. The accompanying statutory guidance stated that transgender women with a GRC were to be regarded as women for the purposes of the legislation and under the Equality Act. The Gender Representation on Public Boards (Scotland) Act 2018originally defined “woman” to include trans individuals under the protected characteristic of gender reassignment. This definition was ruled beyond the Scottish Parliament’s competence in For Women Scotland Ltd v Lord Advocate [2022].Revised guidance aligned with the Equality Act’s definition, which includes trans women with a GRC.

After the Scottish Government issued revised statutory guidance under the Gender Representation on Public Boards (Scotland) Act 2018, For Women Scotland initiated a further judicial review against the Scottish Ministers, arguing that the guidance failed to comply with the decision in For Women Scotland Ltd v Lord Advocate [2022] and was therefore unlawful. The Court of Session upheld the guidance. For Women Scotland appealed to the Supreme Court, which allowed the appeal.

It held that Parliament intended the terms “man,” “woman,” and “sex” in the Equality Act 2010 to refer to biological sex. Consequently, trans women with a GRC are not included in the definition of “woman” under the Act.

The Court held that the terms “man,” “woman,” and “sex” in the Equality Act 2010 refer to biological sex, and that including acquired gender via a GRC would undermine the Act’s consistency, especially in areas like pregnancy, maternity, and sex-based protections.

It found that extending rights based on GRC status could unfairly divide the trans community and create practical issues for service providers, who cannot legally ask about GRCs. The Scottish Government’s broader interpretation was seen as a threat to existing protections, such as those in lesbian-only spaces.

The Court also clarified that trans individuals remain protected under the gender reassignment characteristic in the Equality Act, with further protection available through association, perception, and indirect discrimination claims under the Act.

In Madu v Loughborough College [2025] EAT 52, the Employment Appeal Tribunal (EAT) considered whether a £20,000 costs order against a race discrimination claimant was fair, especially where the claimant had spent part of the case without legal representation.

In 2018, Mr Madu, a Black British applicant, applied for a part-time lecturer role at Loughborough College. After his request to reschedule his interview was denied, while a white Irish candidate was granted one, he brought a race discrimination claim, later instructing solicitors. The successful applicant, a white British candidate, had scored higher in the interview.

Mr Madu argued he was treated less favourably in the scheduling, selection process, and handling of complaints, citing the College’s low ethnic diversity (2.9% non-white staff).

The tribunal dismissed the claim and awarded the College £20,000 in costs. It assumed Mr Madu’s solicitors had advised him his case lacked merit.

On appeal, Mr Madu argued the tribunal wrongly assumed the content of his legal advice and failed to account for the time he was self-represented and the complexities of discrimination cases.

The EAT upheld the appeal and sent the College’s costs application back to be reconsidered by a differently constituted tribunal.

The EAT criticised the tribunal for not fully appreciating the difficulties faced by unrepresented discrimination claimants in assessing whether their case has reasonable prospects. It also highlighted the inconsistency in holding Mr Madu to a high standard while excusing the College, who had legal representation, for not applying to strike out the claim earlier.

Ultimately, the EAT reiterated that although the legal test for awarding costs is uniform, discrimination claims require a careful and sensitive application of that test.

A survey by researchers from Cardiff University, UCL, Oxford’s Nuffield College, and the University of Surrey has shed light on the extent of workplace abuse and growing inequality in UK working conditions.

The Skills and Employment Survey found that one in seven UK workers has faced abuse such as bullying, violence, or sexual harassment. Areas where the risk is particularly high include nursing (32%) and teaching (28%), and among women and night shift workers.

The survey also explored the use of artificial intelligence at work. 24% of those surveyed say they use AI, however, its benefits are largely confined to high-skilled, high-paid roles, often held by younger, male, and degree-educated workers.

Despite an increasing demand for degree-level skills, the number of workers holding such qualifications has dipped slightly.

It is clear from the survey that attitudes toward trade unions are shifting, with over a third of workers in non-unionised workplaces expressing support for unionisation.

The researchers raised concerns about inequities in remote working, pointing out that not everyone has the financial means or living space to set up a proper home office. Over half of workers surveyed are using spaces intended for other purposes to carry out their work.  They argue that policy should encourage a broader range of flexible working options, not just working from home, to help level the playing field.

On 20 March 2025, Acas launched a new campaign aimed at enhancing understanding and support for neurodivergent employees. The initiative provides employers with practical resources and guidance to help build inclusive workplaces.

The campaign focuses on actionable steps employers can take to create more accessible work environments, including making recruitment a more inclusive exercise by accommodating different cognitive styles. Employers can also offer flexible working arrangements and assistive technologies for neurodivergent workers and promote awareness and understanding of neurodivergence among staff to reduce stigma.

In addition to this, the Department for Work and Pensions has established a new expert panel on neurodiversity and employment. Running until summer 2025, the panel will review employment outcomes for neurodivergent individuals and provide evidence-based recommendations to shape workplace policy and practices. It will examine all forms of neurodivergence and consider:

• Barriers to employment and career progression
• Effective employer strategies for fostering inclusion
• Government policies that could support systemic improvements
• Economic benefits of a neurodiverse workforce
• The impact of intersectional factors such as social deprivation, gender, and ethnicity

According to Acas, employers should prepare for increased accountability in aligning recruitment and workplace practices with neurodiversity principles.

The Presidents of the Employment Tribunals for England and Wales and for Scotland have updated the Vento bands, in line with changes to the Retail Prices Index (RPI).

The increased Vento bands are as follows:

• Lower band: £1,200 to £12,100 (previously up to £11,700), for less serious cases.
• Middle band: £12,100 to £36,400 (previously up to £35,200), for cases which do not merit an award in the upper band.
• Upper band: £36,400 to £60,700 (previously up to £58,700), for the most serious cases.
• Awards exceeding £60,700 can be awarded in the most exceptional cases.

The updated bands will apply to all employment tribunal claims submitted on or after 6 April 2025.

A Culture Amp survey has revealed that UK companies are continuing to protect diversity, equity, and inclusion (DEI) budgets, even as such initiatives face increasing resistance in the US. The survey, which gathered responses from over 1,000 UK organisations, found that 74% have a DEI programme in place. Of those, 26% have increased their DEI funding and 33% are maintaining current budget levels.

Similarly, a separate survey by Occupational Health Assessment Ltd, involving 140 UK employers, showed that 53% continue to support equality and diversity policies, with 22% looking to further strengthen their DEI efforts. However, 69% of respondents anticipated that the US rollback on DEI initiatives would have at least some impact on UK workplaces and related policies.

The survey also highlighted how UK employers are integrating DEI into their core operations. Four in ten companies have introduced DEI-related questions into their recruitment processes, and 36% have added diversity-focused items to their engagement surveys to better understand workforce demographics.

The Equality Act 2010, has established strong protections for minority groups in the UK. This would make it difficult for employers to fully adopt the newer, more restrictive approach to DEI being promoted in parts of the US, including by figures such as Donald Trump.

Mrs Higgs, a practising Christian, was employed by Farmor’s School as a pastoral administrator and work experience manager. In these roles, she interacted with secondary school pupils and their parents.

The school’s head teacher received a complaint from a parent regarding a Facebook post shared by Mrs Higgs. The post that was shared criticised the inclusion of same-sex relationships, same-sex marriage, and gender identity as a matter of personal choice in school curriculum. The parent expressed concern that the post reflected homophobic and prejudiced views towards the LGBT community.

Mrs Higgs was suspended and denied holding homophobic or transphobic beliefs. After an internal investigation and disciplinary hearing, she was dismissed for gross misconduct. The disciplinary panel concluded that her social media activity breached the school’s code of conduct. It determined that the offensive nature of the posts, particularly the “inflammatory and quite extreme” language, constituted discrimination in the form of harassment and posed a potential risk to the school’s reputation. Her appeal against the dismissal was unsuccessful.

Mrs Higgs brought claims before the employment tribunal alleging direct discrimination and harassment on the grounds of religion or belief. She argued that she had been mistreated due her beliefs which included the following amongst other beliefs:

• A lack of belief in gender fluidity;
• A belief that a person cannot change their biological sex or gender;
• A lack of belief in same-sex marriage, which she viewed as contrary to Biblical teachings.

The employment tribunal accepted that these beliefs were protected under the Equality Act 2010 (EqA 2010). However, it concluded that Mrs Higgs had not been directly discriminated against or harassed because of those beliefs. Instead, it found that her disciplinary action and dismissal stemmed from the “florid and provocative language” used in her Facebook posts, which could reasonably be interpreted as expressing homophobic and transphobic views, views not protected under the EqA 2010.

The EAT allowed Mrs Higgs’ appeal, finding that the tribunal had failed to properly consider whether the school’s actions were taken because of her beliefs or because of how she manifested them. The EAT held that the tribunal should have assessed whether there was a sufficiently close connection between her protected beliefs and the content of her Facebook posts. As a result, the case was remitted to the tribunal for reconsideration.

The claim reached the Court of Appeal. It substituted a finding that Mrs Higgs’ dismissal amounted to unlawful direct discrimination based on religion or belief.

The Court held that dismissing an employee solely for expressing a religious or protected belief, where the employer, or a third party whose opinion the employer seeks to manage, finds that belief objectionable, constitutes unlawful direct discrimination. Where the dismissal is instead prompted by the manner in which the belief is expressed, it can only be lawful if the employer demonstrates that the response was proportionate and objectively justified.

While Mrs Higgs had shown little insight into the potential offensiveness of her posts or taken them down, the Court held this was not determinative. Employees may understandably resist admitting fault when expressing deeply held beliefs, unless the employer’s need for assurance is critical to preventing future harm, which was not the case here.

The Court clarified that employers cannot interfere with an employee’s rights to belief and expression simply because others find those beliefs offensive. However, employers may impose restrictions where the employment relationship justifies it. Even then, any restriction must be proportionate.

Three factors may guide the proportionality assessment:

1. Relevance to Employer’s Work: Beliefs expressed about topics unrelated to the employer are less likely to cause reputational harm.
2. Manner of Expression: While protected beliefs expressed offensively may harm reputation, the standard for offensiveness should be high.
3. Attribution to Employer: If it is clear the employee is speaking personally, the risk to the employer’s reputation is reduced.

In Mrs Higgs’ case, although there was a link between the posts and her job due to the topic of sex education, the posts were shared from her personal account under her maiden name, with no reference to the school. While reputational risk cannot be ruled out due to the public nature of social media, the potential harm was minimal and speculative.

The Home Office has transitioned from issuing physical biometric residence permits (BRPs) to digital immigration statuses (eVisas). The updated Employer’s Guide to Right to Work Checks confirms that, from 12 February 2025:

• Individuals granted entry clearance overseas for longer than six months will receive a 90-day vignette in their passport to facilitate travel to the UK. Upon arrival, they must create a UKVI account within 10 calendar days or before the vignette’s expiry (whichever is later) to access their eVisa. This replaces the previous requirement to collect a BRP and enables individuals to prove their right to work.
• Where employment commences prior to account creation, employers may perform a manual right to work check using the vignette. However, a follow-up online check via the UKVI online service must be conducted before the vignette expires to retain the statutory excuse against civil penalties.
• If an employee cannot access their eVisa before the vignette expires due to system errors or other issues, they should contact UKVI. Employers are not required to terminate employment in such cases, provided there is a genuine belief in the individual’s continued right to work. Instead, they should use the Employer Checking Service to seek a Positive Verification Notice to preserve their statutory defence.

The guidance also clarifies that a clipped British or Irish passport (i.e., one with cut or removed page corners) is considered cancelled and cannot be used to establish the right to work. Further that a short or long-form birth certificate is acceptable evidence when accompanied by official documentation linking the individual’s name to their National Insurance number, issued by a government body or previous employer.

As artificial intelligence tools become more embedded in everyday workflows, a quiet revolution is unfolding across workplaces: employees are increasingly using AI tools without IT approval, a phenomenon now dubbed “shadow AI”.

A recent survey by Software AG revealed that nearly half of all knowledge workers are using personal AI tools in the course of their work. The motivation? A lack of employer-approved tools, or a desire for more flexible, powerful solutions than those currently provided.

While this growing reliance on unsanctioned AI may boost individual productivity, it introduces serious legal, regulatory and security risks. Sensitive company data, trade secrets or personal information may be processed or stored in external systems beyond the employer’s visibility or control, heightening the risk of data breaches and non-compliance with data protection laws.

According to Harmonic Security, over 5,000 AI applications have been detected in workplaces, including customised ChatGPT instances and AI-enhanced versions of common business software. This widespread use underscores just how easily AI can enter an organisation through the back door.

To regain control, many employers are now developing internal AI tools that strike a balance between employee needs and compliance standards. These solutions aim to enable safe, secure use of AI while maintaining oversight over how and where sensitive data is handled.

The 2025 Order introduces increased minimum wage rates and allowances for workers in the agricultural, horticultural, and agri-forestry sectors in Wales. From 1 April 2025:

• The hourly rate for year one apprentices will rise from £6.40 to £7.55.
• The hourly rate for agricultural workers aged 21 and over will increase from £11.79 to £12.21.

It remains a criminal offence to pay agricultural workers less than the statutory agricultural minimum wage.

The next steps for employers:

• Audit current pay arrangements to identify affected staff.
• Communicate upcoming changes to managers and payroll teams.
• Review apprenticeship programmes to ensure compliance with new minimums.
• Monitor further guidance from the Welsh Government.

The Department for Science, Innovation and Technology (DSIT) has confirmed an increase in the fees payable to the Information Commissioner’s Office (ICO).

The new fee structure, based on an organisation’s size and turnover, is as follows:

• Tier 1 (Micro-organisations): £52 (up from £40)
• Tier 2 (Small and Medium-sized Organisations): £78 (up from £60)
• Tier 3 (Large Organisations): £3,763 (up from £2,900)

Starting from 6 April 2025, new statutory entitlements for Neonatal Care Leave (NCL) and Neonatal Care Pay (SNCP) came into effect, marking a significant change in workplace rights. To help both employees and employers navigate these new provisions, the government has published a comprehensive suite of guidance documents designed to clarify entitlements, eligibility, and the process for both claiming and managing these rights.

Here’s a breakdown of the key resources now available:

Statutory Neonatal Care Pay and Leave: employer guide: Overview – GOV.UK – Employers can access this guide to understand their responsibilities, including record-keeping requirements, financial assistance available for SNCP payments, and the necessary steps if an employee cancels their leave or pay.

Business changes that affect payment of Statutory Neonatal Care Pay – GOV.UK

How different employment types affect Statutory Neonatal Care Pay – GOV.UK

Manually calculate Statutory Neonatal Care Pay – GOV.UK – A guide on how to manually calculate an employee’s SNCP entitlement, ensuring employers can make accurate payments.

Tell an employee that they’re not eligible for Statutory Neonatal Care Pay (NEO1) – GOV.UK – If an employee is not eligible for SNCP, employers can use this form to inform them of their ineligibility.

Alongside government guidance, Acas also published its own advice offering further insights into how these new rights should be implemented in the workplace.

These new rights provide crucial support for families during a challenging time, and it’s essential for both employers and employees to understand how they work. Employers should familiarise themselves with the updated guidelines to ensure compliance and offer the right support to employees navigating neonatal care.

If you have any questions about the new right to Neonatal Care Leave and Neonatal Care Pay, email our Employment Team ([email protected]).

Despite increasing awareness of the importance of diversity and inclusion, many LGBTQIA+ professionals continue to face significant challenges within the workplace, particularly when seeking support from Human Resources.

A recent survey by Pride in Leadership, a UK-based network for LGBTQIA+ leaders, uncovered that 42% of LGBTQIA+ employees felt that HR departments are unresponsive to their concerns related to identity and inclusion, signalling a troubling disconnect between organisational inclusion policies and the actual experiences of LGBTQIA+ individuals at work.

85% of respondents reported encountering barriers in their professional lives due to their LGBTQIA+ identity. These included discriminatory behaviours, exclusionary policies, and inequities in recruitment and advancement. Only 15% indicated that they felt comfortable expressing their identity openly in the workplace.

One of the most prominent concerns was the lack of LGBTQIA+ representation in leadership positions. For many, the absence of role models at the senior level contributed to a sense of invisibility and limits the perception of career mobility.

In response, the report calls on employers, and especially HR leaders, to take deliberate, informed steps to create a genuinely inclusive culture. Among its recommendations:

• Deliver targeted training that equips teams to understand and support LGBTQIA+ employees effectively
• Establish and uphold inclusive policies that go beyond compliance to foster belonging
• Address systemic bias in recruitment by creating fair, transparent hiring and promotion practices
• Invest in leadership diversity to ensure LGBTQIA+ voices are represented at the decision-making level

On 2 April 2025, Acas released new guidance covering Neonatal Care Leave (NCL) and Statutory Neonatal Care Pay (SNCP). While outlining the legal entitlements, the guidance also provides practical recommendations to help employers support staff facing the often difficult circumstances surrounding neonatal care.

The guidance encourages a compassionate and flexible approach, particularly when employees are navigating the early stages of a neonatal situation. Below are some of the key points employers should consider:

1. Make the Process Clear and Accessible

Employers should ensure that policies or employment contracts clearly explain how staff can request NCL and SNCP. In instances where there is no statutory entitlement, particularly within the first seven days of neonatal care, Acas advises employers to be understanding. This could mean offering special paid leave or granting unpaid time off. A supportive approach during these early days can make a significant difference to employee wellbeing.

2. Be Flexible About Notice

The guidance recommends that employers adopt a flexible stance when it comes to notice for NCL. This may include allowing a representative (such as a partner or close relative) to give notice on the employee’s behalf or accepting verbal rather than written notice.

3. Maintain Supportive Contact

Keeping in touch with employees during NCL in a sensitive and appropriate way is strongly encouraged. With the employee’s permission, employers may find it helpful to communicate via a trusted family member or friend. In addition, offering resources that support mental health such as information about the organisation’s Employee Assistance Programme (EAP) or signposting to charities like Bliss or Mind can be especially valuable.

4. Respect Confidentiality

Confidentiality should be treated with care. It is advisable to discuss with the employee whether and how any information should be shared with colleagues or clients. Respecting their preferences helps ensure privacy and dignity during a particularly vulnerable time.

This updated guidance from Acas is a timely reminder of the importance of both policy and practice in supporting employees during critical life events. Beyond legal compliance, fostering a compassionate and inclusive workplace culture can strengthen employee trust, loyalty, and morale.

Employers may wish to use this opportunity to review their current policies, manager training, and communication strategies to ensure they reflect both the letter and the spirit of the new guidance. For assistance, please contact [email protected]

In a recent judgment, the Employment Appeal Tribunal (EAT) clarified that a genuine but mistaken belief by an employer that an employee had resigned could amount to a “some other substantial reason” (SOSR) for dismissal under the Employment Rights Act 1996.

The case involved Ms Korpysa, who was employed via an agency and placed with an end-client. When the client ceased operations during the March 2020 COVID-19 lockdown, her services were no longer needed. According to the agency, Ms Korpysa then requested her holiday pay and a P45, citing that she had secured a new job;  a request the agency interpreted as a resignation and acted on accordingly. However, Ms Korpysa later brought a claim for unfair dismissal, alleging she had not resigned.

The employment tribunal initially sided with Ms Korpysa, finding she had only asked for a copy of her contract and an advance on her holiday pay – actions that, in the tribunal’s view, did not clearly indicate an intention to resign. The tribunal concluded that the agency had dismissed her based on a mistaken assumption and ruled that this did not constitute a fair reason for dismissal.

The agency appealed the decision.

The EAT found that while the tribunal had been correct in identifying the employer’s belief as mistaken, it had erred in concluding that such a belief could never amount to an SOSR reason. The EAT confirmed that a sincerely held but incorrect belief that an employee has resigned can, in principle, justify dismissal provided it is not irrational or baseless.

The EAT also criticised the tribunal for not properly assessing whether the employer’s belief was reasonable and whether appropriate steps were taken to verify the resignation. It emphasised that determining fairness requires an evaluation of the reasonableness of both the belief and the employer’s response to it.

As a result, the EAT overturned the tribunal’s finding of unfair dismissal and remitted the case back for reconsideration, focusing on whether the employer’s mistaken belief qualified as a SOSR and whether the dismissal was fair in the circumstances.

Final Word

This case serves as a reminder that even a genuine mistake by an employer, such as wrongly assuming an employee has resigned, can potentially justify dismissal, provided the belief is reasonable and grounded in fact. However, employers must tread carefully by taking reasonable steps to clarify an employee’s intentions before taking any action as this is essential to avoid procedural missteps and unfair dismissal claims.

In a significant ruling for employers working with children or vulnerable individuals, the Court of Appeal has upheld the Employment Appeal Tribunal’s decision in Hewston v Ofsted [2025] EWCA Civ 250, finding that the dismissal of a school inspector for a single, well-intentioned act of physical contact with a pupil was unfair, due to the absence of a clear policy or relevant training.

Background

Mr Hewston, an Ofsted school inspector since 2007, was dismissed for gross misconduct following an incident during a school inspection in which he brushed rainwater from a pupil’s hair and briefly touched the child’s shoulder. Though the act was intended as a gesture of care, the school reported the incident, leading to a complaint and subsequent investigation. While there was no safeguarding breach, Ofsted concluded the act had “brought the organisation into disrepute”, citing a lack of remorse as further justification for dismissal.

The Employment Tribunal initially sided with Ofsted, but the EAT overturned the ruling, and the Court of Appeal has now dismissed Ofsted’s appeal, affirming the dismissal was both substantively and procedurally unfair.

Key Findings from the Court of Appeal

• No Policy or Training: The Court agreed with the EAT that in the absence of a “no touch” policy or relevant training, it was not reasonable for the employer to expect Mr Hewston to foresee that such conduct could lead to dismissal.
• No Safeguarding Risk: The incident was not deemed harmful, inappropriate, or motivated by misconduct. It was not reasonable to label the behaviour as gross misconduct in these circumstances.
• Attitude Post-Incident: Ofsted argued that Mr Hewston’s lack of insight or contrition contributed to their decision. However, the Court rejected this, stating that his willingness to undergo training and avoid repeating the behaviour should have been enough, regardless of motive.
• Procedural Failings: The disciplinary process was flawed as key documents, including the pupil’s statement, the school’s complaint, and the LADO’s safeguarding feedback, were not disclosed to Mr Hewston during proceedings, depriving him of the chance to respond fully.

Practical Implications for Employers

This ruling underscores the importance of:

• Having clear, written policies in place regarding physical contact or other sensitive areas of conduct, particularly where employees work with children or vulnerable people.
• Providing training so staff understand behavioural boundaries and the potential consequences of crossing them.
• Avoiding reliance on “lack of remorse” as a standalone justification for dismissal unless there is clear evidence of future risk.
• Ensuring procedural transparency, including disclosing all relevant evidence in disciplinary proceedings to ensure fairness.

Final Word

The judgment serves as a reminder that dismissal must fall within the range of reasonable responses and that employees must be given fair notice of what conduct is unacceptable. Where that clarity is missing, especially in cases that do not involve harm or malicious intent, dismissal is unlikely to be considered fair.

From 6 April 2025, changes to the definition of a “small company” under the Companies Act 2006 are set to affect the off-payroll working rules in the private sector.

These rules determine whether organisations engaging contractors through intermediaries (like personal service companies) are responsible for assessing and applying PAYE. However, they only apply when certain “gateway” criteria are met, including whether the client is classed as “small”.

So, what’s changed?

The thresholds used to define a “small company” are going up. For accounting periods starting on or after 6 April 2025, a company will be considered “small” and therefore outside the scope of the off-payroll working rules if it meets at least two of the following:

• Annual turnover of £15 million or less (up from £10.2 million)
• Balance sheet total of £7.5 million or less (up from £5.1 million)
• Average number of employees of 50 or fewer (unchanged)

These revised limits will also apply to group companies and other entities.