Court Says Old Employer Still to Blame for Staff Mistakes Made Before Job Transfer

High Court ruling clarifies what happens under TUPE when employees move jobs but past harm is alleged

407 words, 2 minutes read time.

In the case ABC v Huntercombe (No. 12) Ltd and others, the High Court has ruled that employers cannot pass the blame for their workers’ past mistakes onto a new company just because the staff have been transferred. The decision has important implications for businesses, workers, and anyone affected by workplace negligence.

The Claimant in the case suffered harm while receiving care at a hospital operated by Huntercombe. She claimed that two hospital staff members were responsible. But by the time she took legal action, those two workers had moved to a different company—Active Young People Ltd—through a process known as TUPE.

What is TUPE?

TUPE, short for Transfer of Undertakings (Protection of Employment), is a UK regulation that protects employees when the business or service they work for changes hands. It ensures that workers keep their jobs, pay, and employment terms even when a new employer takes over.

TUPE also means that many of the old employer’s responsibilities—like holiday pay, notice periods, or ongoing grievances—transfer over to the new employer.

But there are limits.

What did the court decide?

The key issue was whether vicarious liability—where an employer is legally responsible for their staff’s actions—also transfers. The Claimant said it should, and argued the new employer should be held responsible for harm caused by staff before the transfer.

The court disagreed. It ruled that TUPE is designed to protect employees, not to make new employers responsible for everything the staff may have done in the past. It said that only legal duties and obligations that exist between the employer and the employee are transferred. Responsibilities for injuries or damage to third parties, like patients or customers, are not.

The court also rejected a previous case, Doane v Wimbledon Football Club, that had suggested the opposite. That earlier case should no longer be followed, it said.

Why it matters

This ruling helps clarify that past liabilities stay with the old employer, even if staff move under TUPE. New employers taking over services or contracts won’t be unexpectedly hit with claims for things that happened before they were in charge.

It also tells Claimants where to aim their legal actions: even if the person responsible has changed employers, the company that employed them at the time of the incident is still the one legally accountable.

By Patrick Harrington

Picture credit: By sjiong – https://www.flickr.com/photos/sjiong/109817932/, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=6380215

UK Supreme Court’s 2025 Ruling: ‘Woman’ Defined by Biological Sex – Context, Implications, and Reactions

In April 2025, the UK Supreme Court delivered a historic judgment confirming that under the Equality Act 2010, the term “woman” refers to a biological female – in other words, one’s sex assigned at birth.[1] This unanimous ruling by five justices resolved a long-running legal dispute and clarified the law’s intent regarding sex-based rights.

Legal Background

The Equality Act 2010 is the UK’s comprehensive anti-discrimination law, establishing sex as a protected characteristic alongside others like race, religion, sexual orientation, and gender reassignment. Notably, the Act’s glossary defines “woman” as “a female of any age” and “man” as “a male of any age.”[2] The Gender Recognition Act 2004 (GRA), passed in response to a 2002 European Court of Human Rights ruling, allows transgender people to obtain a Gender Recognition Certificate (GRC) legally recognizing their acquired gender. A GRC holder is to be treated as their affirmed gender “for all purposes” of law (with a few exceptions).[3] For nearly two decades, the working understanding in the UK was that a trans woman with a GRC would generally be regarded as legally female (a “woman”) in most contexts.

The Supreme Court’s decision in 2025 upended this assumption by drawing a distinction between gender identity and the protected category of sex in the Equality Act. As Deputy Court President Lord Patrick Hodge put it, the EA “deals with biological sex at birth, and not with a person’s acquired gender, regardless of whether they held a gender recognition certificate.”[4]

The For Women Scotland Case

The case was brought by feminist advocacy group For Women Scotland (FWS). In 2018, the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act, aiming for 50/50 representation of men and women on public sector boards. The Scottish government’s accompanying guidance stated that for these purposes, a “woman” included trans women with a GRC, treating them as legally female.[5] FWS – supported financially by author J.K. Rowling – challenged this guidance, arguing that the Scottish government had overstepped its devolved powers by effectively redefining “woman” beyond the meaning intended in the UK-wide Equality Act.

After losing in the Scottish courts in 2022, FWS was granted permission to appeal to the Supreme Court, which heard the case in November 2024.

Supreme Court’s Decision and Reasoning

On April 16, 2025, the Supreme Court ruled unanimously in FWS’s favor.[6] The central question was whether a transgender woman with a GRC counts as a woman under the Equality Act 2010. The court’s answer was a clear “no.”

In an 88-page judgment, the justices held that the ordinary, “plain and unambiguous” meaning of woman in the Equality Act “corresponds with… biological characteristics,” i.e. someone born female.[7] They emphasized that sex in the statute means biological sex, and this had always been Parliament’s intent. Any broader interpretation (e.g. including those who changed legal gender) would, in their view, render parts of the Act “incoherent and unworkable.”

Lord Hodge noted that interpreting sex as “certificated gender” would produce “heterogeneous groupings” and clash with specific provisions on pregnancy, maternity, and sex-specific protections that logically refer only to biological sex.

Workplace and Employment Implications

The Supreme Court’s ruling carries significant implications for workplaces, employers, and trade unions, especially regarding policies on sex and gender. By legally cementing that “women” means only biological females in the Equality Act, the judgment potentially affects everything from hiring practices and diversity policies to provision of single-sex facilities at work.[8]

Single-Sex Spaces and Facilities

Employers that provide sex-specific spaces – such as women’s toilets, changing rooms, or shower facilities – may feel more confident in restricting these to biologically female employees. Previously, many organizations adopted gender identity-inclusive approaches as a matter of good practice or legal caution. While the law already permitted exclusion of trans people from single-sex spaces if it was a “proportionate means of achieving a legitimate aim”, the Supreme Court has “cleared up [that] legal ambiguity,” confirming that such spaces can be lawfully reserved for natal women.[9]

Practically, this may make it easier for employers to exclude trans women from, say, a women’s locker room or female dormitory at a work site, on the basis that they are not legally women. Employers should still tread carefully: any exclusion must be justifiable to avoid unlawful gender reassignment discrimination.[10]

Recruitment and Job Roles

Employers sometimes use genuine occupational requirements to hire only women for certain roles – for example, a counselor for female rape survivors. Under the clarified definition, only biological females count as women for such roles. A trans woman applicant, even with a GRC, could now be lawfully treated as ineligible for a “women-only” position, based solely on her sex at birth.[11]

Equal Opportunities and Diversity Policies

Many employers have adopted expansive equality policies that go beyond the letter of the law. While these commitments aren’t directly affected by the court ruling, the legal baseline has shifted. Employers must be mindful that affirmative action or quotas for women (e.g., in governance or board appointments) cannot automatically include trans women unless this is explicitly stated as a policy choice.[12]

Workplace Dress Codes and HR Practices

The ruling may also affect workplace inclusion. HR professionals have observed that ensuring a welcoming environment for trans employees might become more challenging. One employment law partner noted that “because of the ruling, ensuring workplaces are welcoming places for trans people will be an ‘uphill battle’.”[13] Trans employees could feel alienated if workplace policies start distinguishing “legal women” versus “trans women.”

Trade Unions and Worker Representation

Trade unions – with responsibilities to advocate for equality and represent all members – must navigate this ruling sensitively. A union like Solidarity, for instance, may find the decision validates long-held concerns of some members about preserving sex-based protections. However, they must still robustly support trans members, who are protected under the Equality Act’s gender reassignment provision. No union can lawfully deny representation based on a member’s transgender status.[14]

Unions may also play a crucial role in ensuring that employers implement the ruling fairly – avoiding blanket bans or policies that create hostile environments for trans workers. Updated guidance for shop stewards and equality reps may be necessary to handle sensitive disputes with clarity and fairness.

Consequences for the Trans and Cisgender Communities

The Supreme Court’s decision has profound implications for both transgender people and cisgender women, particularly in their access to services, spaces, and opportunities previously understood to be protected under the broader interpretation of the term “woman.”

Reactions from Trans Communities and Advocacy Groups

LGBTQ+ organizations including Stonewall and TransActual UK have expressed concern that this ruling may reinforce discriminatory behaviour and deepen social exclusion. They argue that although protections under the gender reassignment characteristic remain in place, the ruling effectively creates a legal distinction that reduces the scope of rights and recognitions trans people may have previously assumed.[15]

Jane Fae, director of TransActual, warned the ruling could have a symbolic impact that makes trans people feel “as if they have been told they do not exist.” While not creating new offences, the judgment may be misinterpreted by service providers or individuals, potentially increasing the risk of exclusion and misapplication of the law.[16]

Access to Single-Sex Spaces and Public Services

Trans women may now face greater exclusion from rape crisis centres, domestic violence refuges, hospital wards, and changing rooms, even when they hold a Gender Recognition Certificate (GRC). The ruling confirms that these services can legally define access by biological sex, provided the exclusion is proportionate and justified.[17]

NHS guidance from 2019, which stated that trans patients should be accommodated according to their gender presentation, is expected to be revised to align with the ruling. Baroness Falkner of the EHRC has indicated that the NHS and similar service providers will need to “start to implement the new legal reasoning and produce their exceptions forthwith.”[18]

Public Boards and Civic Participation

Trans women will no longer qualify as women for the purposes of measures aimed at achieving gender balance on public sector boards, such as those legislated for by the Scottish Government. This has immediate implications for civic representation and may set a precedent for similar assessments across the UK.

Responses from Cisgender Women

Some gender-critical feminists and advocacy groups such as For Women Scotland and the LGB Alliance celebrated the ruling, calling it a “victory for women’s rights” and a confirmation that women-only spaces and services should be protected as such.[19] They argue this offers legal support to cisgender women who have raised concerns about privacy, safety, and dignity in shared spaces.

However, many cisgender women and feminists who support transgender inclusion have responded with dismay, noting that trans women have used these spaces safely for years. Critics worry the ruling may embolden harassment and vigilance by the public in gender-policing spaces like toilets and changing areas.

Legal Ambiguity for Trans Men and Non-Binary People

Interestingly, the ruling also means that trans men – individuals assigned female at birth – are still considered women under the Equality Act, unless future legislation states otherwise. This has potential implications for inclusion in women-only spaces and in measures designed to promote female representation or opportunity. For non-binary individuals, who do not identify strictly as male or female, the ruling provides no clear guidance, leaving them in a legal grey area.

Social and Psychological Impacts

Though the court emphasized that trans individuals are still protected under the Equality Act, the symbolic message of the ruling is profound. Many in the trans community feel relegated or erased, while some cisgender women feel that their rights are being newly upheld. The challenge for service providers, employers, and advocacy groups is to ensure that in asserting sex-based rights, society does not inadvertently foster exclusion, hostility, or harm.

Comparative International Legal Context

The UK Supreme Court’s ruling has placed the country at one end of a spectrum of international approaches to legal definitions of sex and gender. While some democracies are codifying sex as based on biology, others are expanding legal frameworks to affirm gender identity regardless of sex assigned at birth.

United States

In the United States, the legal approach is more fragmented. The landmark Supreme Court case Bostock v. Clayton County (2020) ruled that firing someone for being transgender constitutes discrimination under Title VII of the Civil Rights Act, which prohibits sex-based discrimination.[20] However, definitions vary by state. Several U.S. states have passed legislation explicitly defining sex as immutable and based on birth anatomy, similar to the UK’s new interpretation. Conversely, the federal government under the Biden administration has broadly interpreted sex-based protections to include gender identity.

Canada

Canada has enshrined gender identity and expression as protected categories under the Canadian Human Rights Act and provincial human rights codes. Since 2017, federal law explicitly prohibits discrimination based on gender identity, and most provinces allow for gender marker changes on identification documents without surgical requirements.[21] Legal sex is defined by self-identification in most contexts, and transgender individuals are fully recognized in the gender they live in.

European Union

Across the EU, many countries have moved toward gender self-identification. For instance, Ireland, Denmark, and Spain allow individuals to change legal gender based on self-declaration without medical certification. Spain’s 2023 “Ley Trans” legislation allows individuals over 16 to change their legal sex based on self-identification, aligning with progressive EU standards.[22]

However, not all European countries are aligned. Poland and Hungary have taken restrictive stances, with Hungary banning legal gender changes altogether in 2020. In general, though, EU human rights case law, including decisions by the European Court of Human Rights (ECHR), has supported trans rights, particularly through privacy and non-discrimination provisions.

Australia and New Zealand

In Australia, federal and state laws vary, but generally include gender identity as a protected attribute. Court rulings have recognized trans individuals in their affirmed gender, and several states allow self-identification for legal gender change. New Zealand introduced self-ID for gender on birth certificates in 2023, marking a significant shift toward gender autonomy.[23]

Sports and Global Bodies

Internationally, governing bodies like World Athletics and World Rugby have introduced policies restricting trans women’s participation in female competitions, citing fairness and safety. The UK ruling may reinforce similar domestic policies, although interpretations continue to evolve.

Summary

Compared to its peers, the UK now occupies a more restrictive position on the legal definition of sex. While many liberal democracies are moving toward gender-inclusive frameworks, the UK has clarified a biological interpretation of sex for equality law purposes. This divergence may have implications for future international human rights reviews or legal conflicts involving cross-border rights recognition.

2024: A Turning Point in British Politics

2024 will be remembered as a turning point in British politics, marking the return of a Labour government after nearly two decades. While the Keir Starmer-led Labour Party secured a landslide victory, questions remain about the legitimacy of their mandate and the direction of their policies. Despite the commanding 174-seat majority, Labour’s 33% vote share raises important questions about the fairness of our electoral system. Does this truly reflect the will of the people? Such disparities highlight the ongoing need to revisit and potentially reform our democratic processes.

Is it time to consider proportional representation to ensure all voices are heard? Labour’s honeymoon period was short-lived. Riots erupted across the United Kingdom in the wake of the tragic deaths of three young girls at a Dance and Yoga event in Southport, England. Rioting was reported in a dozen towns and cities, from Plymouth to Belfast. These events underline a growing disconnect between the government and the public, particularly on the sensitive issue of immigration. The unrest has sparked important questions: could these riots have been avoided if the government, and indeed previous ones, had been more attuned to public sentiment? Immigration remains a deeply divisive issue, with government responses often reactive rather than proactive. A comprehensive and compassionate immigration policy, paired with meaningful efforts to address public concerns, could go a long way in preventing such tragedies and fostering unity.

In brighter news, Chancellor Rachel Reeves delivered Labour’s first budget since 2010, bringing some relief to low-paid workers. The Living Wage rose from £11.44 to £12.21 an hour. While this is a step in the right direction, we at the Solidarity Trade Union must remind the Chancellor that it still falls short of the Actual Living Wage, which stands at £12.60. For workers on the frontlines of our economy, this discrepancy means continued struggles to make ends meet. Labour must do more to fulfill its promise of a fairer society.

As we reflect on the events of 2024, it’s clear we face significant challenges as a nation. However, these challenges also present opportunities for change. To achieve the fairer, more equitable society we all desire, we must remain engaged and active. Join your local union, participate in community initiatives, and make your voice heard. Together, we can shape a better future. Let us step into 2025 with determination, hope, and a shared commitment to building a society that works for everyone. Change may not come easily, but united, we can make it happen.

By Glen Nicklasson, President of Solidarity union

Xmas 2024 Message From Pat Harrington, General Secretary of Solidarity Union

2024 has been a pivotal year for employment law and trade union activity in the UK. The election of the new Labour government brought fresh hopes for workers’ rights. Their manifesto promised significant reforms to improve conditions for employees and empower trade unions. Here, we review the key developments, including the new Employment Act and its proposed amendments, and assess how far they have delivered on their commitments.

The New Labour Government

The Labour Party’s victory in the general election was hailed as a turning point for workers. The party ran on a platform of fairness, job security, and empowerment for employees. Early actions by the government focused on reversing some of the anti-union measures introduced by previous administrations. There were high expectations for transformative change.

The Employment Act 2024

One of the government’s flagship policies was the introduction of the Employment Act. This comprehensive legislation aimed to tackle issues like insecure work, low pay, and lack of workplace protections. Key provisions included:

A ban on zero-hours contracts, except in specific circumstances.
A requirement for all workers to have predictable contracts.
Increased statutory sick pay and holiday entitlements.
Strengthened rights for workers to join and organise in trade unions.

These measures were welcomed by unions and advocacy groups. However, employers raised concerns about the increased costs and administrative burdens.

Proposed Amendments

The Employment Act also introduced a framework for further reforms. Proposed amendments currently under consultation include:

Mandatory recognition of trade unions in workplaces with over 50 employees.
Greater protections for gig economy workers, building on recent court rulings.
Expanded parental leave provisions, including paid leave for carers.

While these proposals signal a strong commitment to workers’ rights, their implementation faces challenges. Some employers and political opponents argue that the changes could harm business competitiveness.

Delivering on Promises

The Labour government has made progress, but significant gaps remain. Trade unions welcomed the repeal of laws that restricted industrial action.

However, delays in implementing parts of the Employment Act have caused frustration.

Workers in the gig economy have seen incremental improvements. Recent court decisions, such as the Uber ruling, have set important precedents.

Yet, unions argue that legislative backing is needed to secure long-term change.

Trade Union Activity

2024 also witnessed increased union activity. The cost-of-living crisis and high inflation led to widespread industrial action.

Strikes were held in key sectors, including health, education, and transport. Unions played a critical role in negotiating improved pay deals and working conditions.

Solidarity supported the strikes, standing with workers in their fight for fair pay and conditions.

The union’s commitment to advocacy reinforced the importance of collective action in achieving tangible results for members.

The government’s pledge to strengthen collective bargaining has seen mixed results.

The new requirement for mandatory negotiations in large workplaces is a step forward.

But unions have called for more robust enforcement mechanisms.

Solidarity Union: Punching Above Its Weight

Solidarity, though a smaller union, has made a significant impact in campaigning for workers’ rights and providing representation at meetings for its members.

The union’s Technical Advantage Group has been utilising AI to expand into videos and assist with research this year.

This innovative approach has enhanced its ability to advocate for members effectively. AI will remain a key area of development in the coming year.

Solidarity has also built alliances with other groups to promote specific campaigns. Most recently, the union partnered with the Facebook group “Great UK Products You Can Buy” to promote its “Buy British at Xmas” campaign.

Strengthening such partnerships will be a priority in the next year, helping to amplify its message and achieve greater results for workers.

Solidarity was also pleased to see legislation on the fair allocation of tips, which it and other unions had campaigned for.

This important change ensures that workers in sectors like hospitality receive the tips they earn, promoting fairness and transparency.

Looking Ahead

The Labour government’s first year has laid important groundwork for change.

The Employment Act and related measures demonstrate a clear intent to prioritise workers’ rights.

However, the road ahead remains complex. Balancing the needs of businesses and workers will require careful navigation.

Unions and workers must remain vigilant. Continued advocacy is essential to ensure the government delivers on its promises.

The next year will be crucial in determining whether 2024 marks a true turning point for employment law and rights for workers in the UK.

Patrick Harrington
General Secretary
Solidarity Trade Union

Key Employment Law Cases of 2024 in the UK

1,315 words, 7 minutes read time.

2024 has been a significant year for employment law in the UK. Key cases have shaped the landscape for workers and their rights. This review explores the benefits and disadvantages of these rulings, focusing on their impact on employees.

Uber BV v Aslam and Others

The ongoing gig economy debate saw another important development this year. The Supreme Court reaffirmed its decision that Uber drivers are workers, not independent contractors. This classification grants them entitlements such as minimum wage, holiday pay, and protection against discrimination.

Benefits: This ruling strengthens the rights of gig workers, offering them a safety net. For Uber drivers, it means better financial stability and fairer treatment.

Disadvantages: Some drivers expressed concern over losing flexibility. Uber responded by adjusting its app policies, which some say makes their work more rigid. The ruling could also push gig companies to automate roles, potentially reducing opportunities.

Forstater v CGD Europe

Maya Forstater’s case clarified protections for workers with gender-critical beliefs. The Employment Appeal Tribunal ruled that her beliefs fall under the Equality Act 2010.

Benefits: Employees can now feel more secure expressing lawful beliefs without fear of unfair dismissal. This case sets a precedent for freedom of thought in the workplace.

Disadvantages: Critics argue that this could create conflicts at work. Employers may struggle to balance the rights of different groups.

Kostal UK Ltd v Dunkley

This case examined collective bargaining rights. Kostal attempted to bypass union negotiations by offering deals directly to employees. The Supreme Court ruled this unlawful.

Benefits: This decision strengthens collective bargaining. It ensures that unions cannot be undermined by direct offers from employers.

Disadvantages: Some argue this could delay agreements in urgent situations. Employers might also view unions less favourably, impacting industrial relations.

Higgs v Farmor’s School

Kristie Higgs was dismissed for social media posts opposing LGBT+ education policies. The Court of Appeal ruled her dismissal lawful, citing reputational risk to the school.

Judgment Date: 16 June 2023 (Employment Appeal Tribunal); heard by the Court of Appeal on 2-3 October 2024)

Benefits: This case underscores the importance of considering workplace culture and public perception. It highlights the need for clear social media policies.

Disadvantages: Some employees feel this limits their freedom of expression. The case raises questions about where personal beliefs intersect with professional responsibilities.

Mercer v Alternative Future Group

This case addressed the right to trade union representation. A care worker faced disciplinary action without union representation. The Employment Tribunal ruled in her favour.

Benefits: The ruling reaffirms the importance of union representation. It empowers workers to seek support during disputes.

Disadvantages: Employers may view unionised staff as more challenging. This could impact hiring decisions or workplace dynamics.

Secretary of State for Business and Trade v Mercer

Judgment Date: 17 April 2024

The Supreme Court decided that under current legislation, workers have no protection against being subjected to a detriment for taking part in industrial action. As a result, the legislation was held incompatible with Article 11 of the European Convention on Human Rights (right to freedom of association).

Benefits: This case highlights gaps in protection for striking workers and signals a need for legislative reform.

Disadvantages: Until laws are updated, workers may feel vulnerable when engaging in industrial action.

Rentokil Initial UK Ltd v Miller

Judgment Date: 2024

An employer was found to have failed in its duty to make reasonable adjustments by not offering a disabled employee a trial period in a different role, when he was no longer able to continue in his original role due to the effects of his disability.

Benefits: This case reinforces the duty of employers to provide reasonable adjustments, ensuring fair treatment for disabled employees.

Disadvantages: Employers may find it challenging to accommodate such adjustments, especially in smaller organisations.

Individual Liability for Discrimination – Baldwin v Cleves School

Judgment Date: 2024

The EAT decided that when an employer was held vicariously liable for the discriminatory acts of two employees, who were both named as respondents in the claim, those individuals were also personally liable for the discrimination.

Benefits: This decision holds individuals accountable for discriminatory acts, promoting personal responsibility.

Disadvantages: It may increase workplace tensions and lead to additional legal disputes involving individual employees.

Detriment After Whistleblowing – First Greater Western Ltd v Moussa

Judgment Date: 2024

The EAT held that the employer had victimised the employee and subjected him to a detriment (by subjecting him to disciplinary proceedings) for making protected disclosures six years previously.

Benefits: This case underscores the long-term protections available for whistleblowers, encouraging transparency.

Disadvantages: Employers may face difficulties addressing historical issues related to whistleblowing.

National Minimum Wage and Travel Time – Taylors Service Ltd v HMRC

Judgment Date: 2024

The EAT held that time spent travelling to and from clients’ premises, sometimes for up to eight hours per day, was not considered ‘time work’ under the NMW Regulations, meaning workers were not entitled to be paid the NMW for this time.

Benefits: Provides clarity on the interpretation of the NMW Regulations for employers.

Disadvantages: Workers who spend significant time travelling may feel undervalued and underpaid.

Indirect Discrimination: British Airways plc v Rollett and Others

Judgment Date: 26 May 2024

The EAT confirmed that claimants who do not share a relevant protected characteristic, but who share the same disadvantage as those with that protected characteristic, are entitled to bring a claim for indirect discrimination.

Benefits: This ruling broadens the scope of indirect discrimination claims, promoting fairness for all employees.

Disadvantages: It may increase the complexity of managing workplace policies and adjustments.

Dismissal and Re-engagement – Tesco Stores Ltd v USDAW

Judgment Date: 15 June 2024

The Supreme Court upheld an injunction to prevent Tesco from ‘firing and rehiring’ a group of employees in order to remove a contractual entitlement to enhanced pay. The Court decided that as the payment was a ‘permanent’ entitlement, Tesco could not terminate the employees’ contracts with the purpose of removing it.

Benefits: This case affirms protections for long-standing contractual entitlements, boosting worker security.

Disadvantages: Employers may find it harder to adjust contracts in response to business needs.

Sex-Related Harassment – British Bung Manufacturing Company Ltd v Finn

Judgment Date: 15 November 2024

An offensive comment made about a man’s baldness by a colleague amounted to sex-related harassment, since it was inherently related to the claimant’s sex.

Benefits: This case sets a precedent for recognising less obvious forms of harassment, improving workplace respect.

Disadvantages: It may lead to heightened sensitivity and potential conflicts in some workplaces.

Pre-Termination Negotiations – Gallagher v McKinnon’s Auto and Tyres Ltd

Judgment Date: 2024

The employer, who told an employee during a ‘pre-termination negotiation’ that a formal redundancy process would be commenced if he did not accept an enhanced redundancy package, had not behaved ‘improperly’ or placed undue pressure on the employee.

Benefits: This case provides clarity on what constitutes improper behaviour during pre-termination negotiations.

Disadvantages: Employees may feel coerced even if legal thresholds for impropriety are not met.

Redundancy Consultation – De Bank Haycocks v ADP RPO UK Ltd

Judgment Date: 2024

The Court of Appeal decided that for small-scale redundancies (affecting fewer than 20 employees), it is not a requirement for employers to conduct general workforce consultation in addition to individual consultation. Consultation must take place at a ‘formative stage’ but this does not have to happen at workforce level.

Benefits: Clarifies the requirements for consultation in small-scale redundancies, reducing administrative burdens on employers.

Disadvantages: Workers may feel less represented in redundancy processes.

Looking Ahead

These cases show a complex picture. Some rulings empower workers, offering greater rights and protections. Others highlight tensions between individual beliefs and collective workplace harmony.

The balance between employer needs and worker rights remains delicate. For workers, being informed is key. Understanding these cases equips them to better advocate for their rights. At Solidarity, we continue to fight for fair treatment for all. 2024 has proven that vigilance and unity are as important as ever.

By Pat Harrington

Understanding Night Work’s Impact on Health

510 words, 3 minutes read time.

Night work remains a cornerstone of the economy, but the toll it takes on workers is often underestimated. Recent TUC research led by Dr. Sian Moore and Dr. Ruth Ballardie brings to light the comprehensive impacts of night shifts on physical health, mental wellbeing, family dynamics, and social lives. For those in Solidarity Union and beyond, understanding these effects is crucial to advocating for fairer treatment and support for our members engaged in night work.

1. Health Risks Linked to Night Shifts

Physical Health: Night work disrupts circadian rhythms, leading to risks of cardiovascular disease, gastrointestinal disorders, and metabolic issues like diabetes. The disruption impacts sleep, contributing to chronic fatigue and raising health risks.
Mental Health: There’s a strong link between night work and depression, particularly for female workers. Sleep deprivation and social isolation from family and friends exacerbate mental health struggles, creating cycles that impair overall wellbeing.

2. Psychosocial and Work-Life Impacts

Work Intensification: Staff shortages and high demand during night shifts increase work pressures, often leaving night workers feeling isolated, overworked, and unsupported by management. The study shows that limited managerial support, especially during night hours, compounds stress.
Family and Social Disruption: Night work often means missing family time, school events, and social gatherings. The research highlights how night shifts lead to fragmented family lives and are linked to increased risks of divorce and strained relationships, especially in households with young children.

3. Financial and Job Security Drivers

Many workers take on night shifts primarily for the financial premium it provides. However, some are forced into night work due to limited availability of day positions or labour market conditions, which offer few alternatives. Despite the health trade-offs, financial pressures mean many have little choice but to continue.

4. Union Actions and Employer Responsibilities

Shift Premiums: While shift premiums offer some financial compensation, the inconsistency in rates across industries fails to fully account for the physical and mental toll. Union-negotiated improvements in shift flexibility, recovery periods, and health benefits are essential.
Worker Control Over Shifts: Allowing workers control over their shifts has proven to reduce negative impacts on family and social life. However, many employers are inflexible, exacerbating strain on night workers.
Workplace Safety: With risks of violence and safety hazards higher at night, it is critical that employers establish robust safety measures, particularly for lone workers. The report highlights cases where inadequate support leaves workers vulnerable.

5. Recommendations for Union Advocacy

This research underscores the need for Solidarity to push for stronger protections for night workers, including limits on shift lengths, increased recovery time, and access to occupational health services. Union reps should continue to negotiate for fair treatment, safer conditions, and flexibility that respects the unique needs of night workers.

By raising awareness and advocating for policies that address these findings, we can help to mitigate the adverse effects of night work and ensure better support for those who keep society running through the night. This research provides a foundation for action—let’s use it to drive meaningful change for our members.

Download the full report here

By Maria Camara

Discrimination Claims and TUPE: Understanding Liability Transfer

329 words, 2 minutes read time.

In a recent ruling, the Employment Appeal Tribunal (EAT) clarified the transfer of liability for discrimination claims under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). Let’s delve into the details of this case:

Background

When a business undergoes a change of ownership or service provider, TUPE regulations come into play to safeguard employees. These regulations ensure that employees’ contracts of employment automatically transfer from the outgoing employer (transferor) to the new employer (transferee). However, not all employees necessarily transfer during such transitions.

The Case: Sean Pong Tyres Ltd v Moore

The claimant in this case alleged unfair dismissal, discrimination, and harassment against their employer.
The harassment claim specifically related to the conduct of a colleague, X, prior to the claimant’s resignation.
Following a subsequent TUPE transfer, X’s employment moved to a different company, Credential.
Importantly, the claimant’s employment did not transfer to Credential because they had already resigned due to the discrimination.
The claimant’s employer argued that Credential should be liable for the claims, given X’s transfer under TUPE.

EAT Decision

The EAT reached the following conclusions:

Timing Matters: The claimant resigned well before the TUPE transfer, and this decision was unrelated to the transfer itself. As a result, the claimant’s employment remained with the original employer.
Equality Act Claims: Discrimination and harassment claims fall under the Equality Act. The EAT distinguished this case from a non-binding County Court decision related to vicarious liability for negligence. Unlike vicarious liability, primary liability under the Equality Act is owed directly to the claimant employee.
Purpose of TUPE: The purpose of TUPE is to transfer rights and obligations connected to transferring employees. It does not extend to non-transferring employees like the claimant.

Key Takeaways

This case highlights how an employer’s liabilities may or may not transfer based on which employees are within the scope of a TUPE transfer.

In this instance, Credential did not inherit liability, and the claimant’s original employer remained responsible for the claims.

Summary by Pat Harrington

Victory for free expression at the Employment Tribunal

David Miller, an academic and professor of political sociology, recently achieved a significant victory in a landmark employment tribunal against the University of Bristol. Here are the key details:

Background:
- In 2019, Prof. Miller faced a complaint after delivering a lecture at the university where he asserted that the Zionist movement was one of the five pillars driving Islamophobia in the UK.
- The Community Security Trust charity subsequently filed a complaint, l
- David Miller, an academic and professor of political sociology, recently achieved a significant victory in a landmark employment tribunal against the University of Bristol. Here are the key details:
- Background:
  - In 2019, Prof. Miller faced a complaint after delivering a lecture at the university where he asserted that the Zionist movement was one of the five pillars driving Islamophobia in the UK.
  - The Community Security Trust charity subsequently filed a complaint, labelling his lecture as a “false, vile, anti-Semitic slur.”
  - Despite an investigation into the initial complaint, no further action was taken.
- Dismissal and Discrimination:
  - In February 2021, Prof. Miller participated in an event titled “Building the campaign for free speech”, during which he discussed his views on Palestine and Israel.
  - These subsequent comments led to disciplinary proceedings, and he was dismissed from his role on October 1, 2021.
  - The university cited that he did not meet the standards of behaviour expected of university staff.
  - Prof. Miller then launched employment tribunal proceedings, claiming unfair dismissal, breach of contract, and discrimination based on religion or belief.
- Tribunal Ruling:
  - The Bristol Employment Tribunal ruled in favour of Prof. Miller, stating that he was wrongfully dismissed by the University of Bristol.
  - Importantly, the tribunal recognized that anti-Zionist views qualify as a protected belief under the UK Equality Act.
  - Prof. Miller’s belief that Zionism is inherently racist, imperialist, and colonial was deemed a philosophical belief and a protected characteristic.
  - His lawyer, Zillur Rahman, hailed this as a pivotal moment for those who advocate for the rights of Palestinians.
- University’s Response:
  - The University of Bristol acknowledged the judgment but expressed disappointment with the findings.
  - They emphasized the importance of respectful dialogue and diverse viewpoints within the community.
- This case highlights the intersection of academic freedom, protected beliefs, and the ongoing debate surrounding Zionism and its implications. Prof. Miller’s victory underscores the significance of safeguarding diverse perspectives in educational institutions

Summary by Patrick Harrington. The full judgment is available here.

FCA manager loses tribunal claim over permanent remote working request

The outcome does not mean that employers can automatically reject requests for remote working

Summary: The case of Elizabeth Wilson v the FCA was an employment tribunal claim that was heard on 20 November 2023. Wilson, a senior manager at the FCA, applied for a flexible working arrangement to work from home permanently, but her request was rejected by her employer. She then challenged the decision on the grounds that it was based on incorrect facts. However, the tribunal dismissed her claim and only awarded her a small compensation for the delay in notifying her of the outcome of her appeal.

Elizabeth Wilson v the FCA: A Case Study on Remote Working

Introduction

Remote working, or the practice of working from home or another location outside the office, has become increasingly popular and necessary in the wake of the COVID-19 pandemic. However, not all employers and employees agree on the benefits and drawbacks of this arrangement, and some disputes may arise over the right to request and refuse flexible working applications. One such dispute was the case of Elizabeth Wilson v the Financial Conduct Authority (FCA), an employment tribunal claim that was heard on 20 November 2023. This case study will provide a summary of the facts, the legal issues, the outcome, and the implications of the case for the future of remote working.

Facts of the Case

Elizabeth Wilson was a senior manager at the FCA, the UK’s financial regulator, since 2005. Her initial contract indicated that her normal place of work would be at a physical office location. However, in early 2020, she was allowed to work from home for health reasons, and continued to do so during the national lockdowns imposed by the government to contain the spread of the coronavirus. She claimed that she performed well and maintained effective relationships with her colleagues and stakeholders while working remotely.

In December 2022, after the pandemic restrictions eased, the FCA implemented a policy of asking staff to return to the office for two days a week, or 40% of their working time, and work remotely for the remaining 60%. Wilson submitted a flexible working request to work from home permanently, arguing that she had proven her ability to work remotely and that it suited her personal circumstances better. She also cited environmental and financial benefits of reducing her commute.

In March 2023, she learned that her request was rejected by her manager, who stated that working from home would have a detrimental impact on her performance and quality of output. The manager cited several reasons, such as the loss of face-to-face training, collaboration, and coaching opportunities, the difficulty of managing a team remotely, and the need to input in management strategy meetings and be involved in in-person activities. Wilson appealed the decision, but it was also rejected by the director of authorisations, who upheld the manager’s reasoning and added that the FCA had a legitimate expectation that Wilson would complete certain elements of her work in the office.

Wilson then lodged a tribunal claim, alleging that the FCA had failed to comply with the statutory procedure for dealing with flexible working applications, and that the decision to reject her request was based on incorrect facts.

Legal Issues

The legal framework for flexible working applications is set out in sections 80F to 80I of the Employment Rights Act 1996 (as amended). According to section 80F, a qualifying employee may apply for a change in the terms and conditions of their employment, such as the hours, times, or place of work. According to section 80G, the employer must deal with the application in accordance with the regulations made by the Secretary of State, and must only refuse the application on one or more of the following grounds:

the burden of additional costs
detrimental effect on ability to meet customer demand
inability to reorganise work among existing staff
inability to recruit additional staff
detrimental impact on quality
detrimental impact on performance
insufficiency of work during the periods the employee proposes to work
planned structural changes

The employer must also notify the employee of the final decision within three months of the application, unless an extension is agreed. According to section 80H, the employee may present a complaint to an employment tribunal if the employer fails to comply with the procedure, or if the decision to reject the application is based on incorrect facts.

The main legal issues in the case were:

Whether the FCA had complied with the procedure for dealing with flexible working applications
Whether the FCA had refused the application on one or more of the statutory grounds
Whether the FCA’s decision was based on incorrect facts

Outcome of the Case

The employment tribunal dismissed Wilson’s claim, except for a minor breach of the procedure. The tribunal found that the FCA had complied with the procedure for dealing with flexible working applications, except for notifying Wilson of the outcome of her appeal within the statutory time limit. The tribunal awarded Wilson a small compensation of £643 for the delay, equivalent to one week’s pay.

The tribunal also found that the FCA had refused the application on the ground of detrimental impact on performance, which was one of the statutory grounds. The tribunal accepted the FCA’s arguments that working from home would affect Wilson’s ability to deliver face-to-face training, collaborate with colleagues, coach new team members, and participate in management strategy meetings. The tribunal noted that these were legitimate expectations of Wilson’s role as a senior manager, and that the FCA had a reasonable basis to conclude that working from home would negatively impact these aspects of her work.

The tribunal further found that the FCA’s decision was not based on incorrect facts, as Wilson had alleged. The tribunal rejected Wilson’s claim that she had performed well and built effective relationships while working remotely, as these were subjective assessments that did not negate the FCA’s concerns about the potential risks to her performance. The tribunal also rejected Wilson’s claim that the FCA had failed to consider the environmental and financial benefits of working from home, as these were not relevant factors for the FCA’s decision.

Implications of the Case

The case of Elizabeth Wilson v the FCA is one of the first cases to deal with the issue of remote working in the post-pandemic era. It illustrates some of the challenges and conflicts that may arise between employers and employees over the right to request and refuse flexible working arrangements. It also highlights some of the factors that employers and employees should consider when making and assessing such requests, such as the nature and requirements of the role, the impact on performance and quality, and the expectations and preferences of both parties.

The case does not mean that employers can automatically reject requests for remote working, or that employees have no right to work from home. Each case will depend on its own facts and circumstances, and the employer must still follow the statutory procedure and grounds for dealing with flexible working applications. However, the case does suggest that employers may have a strong case to refuse requests for remote working if they can show that it would have a detrimental impact on the employee’s performance, and that this impact is based on reasonable and objective grounds.

The case also does not mean that remote working is not a viable or beneficial option for some employees and employers. Remote working may still offer advantages such as increased flexibility, productivity, and well-being for some workers, and reduced costs, turnover, and absenteeism for some employers. However, remote working may not suit every role, every organisation, or every individual, and there may be trade-offs and challenges involved, such as communication, collaboration, and supervision issues. Therefore, remote working should be considered as one of the possible options for flexible working, rather than a default or universal solution.

The case of Elizabeth Wilson v the FCA may have implications for the future of remote working, as it may influence the attitudes and behaviours of employers and employees towards this practice. It may also prompt further legal developments and guidance on the issue, as the law and regulations on flexible working may need to adapt to the changing realities and expectations of the post-pandemic world.

By Pat Harrington

Citation: Wilson v Financial Conduct Authority [2023] ET 2302739/2023.
You can find the full judgment of the tribunal here: https://assets.publishing.service.gov.uk/media/65a8ecedb2f3c60013e5d4e9/Mrs_E_Wilson_v_Financial_Conduct_Authority_2302739-2023_Judgment__002_.pdf

Disclaimer: This case study is for informational and educational purposes only. It is not intended to provide legal advice or opinion on any specific issue or situation. It does not constitute or create a solicitor-client relationship between the author and the reader. The reader should not rely on the information or analysis in this case study as a substitute for professional legal advice or consultation. The reader should always seek the advice of a qualified lawyer before taking any action or making any decision based on the information or analysis in this case study. The author does not accept any liability or responsibility for any errors, omissions, or inaccuracies in this case study, or for any consequences or damages arising from its use or misuse.

Image by StartupStockPhotos from Pixabay

New Paternity Leave Rules

Image: Kollectiv Futur 2024. All rights reserved.

340 words, 2 minutes read time.

The government has recently unveiled the draft legislation known as the Paternity Leave (Amendment) Regulations 2024, following the prior announcement of proposed alterations to paternity leave rights in summer 2023. These regulations bring about significant changes aimed at enhancing flexibility and support for employees. Key modifications include the option for employees to split their two-week paternity leave entitlement into two separate one-week blocks, as opposed to the previous requirement of taking it all at once or in two consecutive weeks. Additionally, employees will now have the flexibility to take paternity leave at any point within 52 weeks after the birth, a departure from the previous 56-day window. Furthermore, the notice period for intending to take paternity leave has been significantly reduced to 28 days, down from the previous 15 weeks before the Expected Week of Childbirth (EWC). The leave is paid at the statutory rate, which is currently £172.48 per week.

Patrick Harrington, General Secretary, of Solidarity union commented:

“While the new regulations are a step in the right direction, some argue that they could have gone further. For instance, the leave period could have been extended to allow fathers to spend more time with their newborns. Additionally, the pay rate could have been increased to help families cope with the financial burden of having a new child.

It is important to note that the new regulations are a significant improvement over the previous ones. Hopefully, this government or the next will continue to make progress in this area and provide even more support for new parents in the future.”

It is important to note that the application of these Regulations will be universal, taking effect in all cases where the EWC falls on or after 6 April 2024. These proposed changes are slated to align with other family-friendly legal adjustments, including the introduction of carer’s leave, revisions to flexible working rights, and the expansion of redundancy protection to encompass pregnancy, as well as a period following maternity, adoption, and shared parental leave.