Welcome to the summer newsletter.

In this edition, we explore recent Employment Tribunal cases and awards. One case saw a £20k unfair dismissal award after an employee was sacked for falling asleep at work — a reminder that following a fair process is crucial, even in straightforward cases.

As the Employment Rights Bill moves through Parliament, significant changes to employment law are on the horizon — including new limits on the use of ‘fire and rehire’.

We’ve created a progress tracker to help you stay updated, and our sister company WorkNest has released an on-demand webinar: The End of Fire and Rehire | getting ready for reform.

1. Independent investigators not liable for whistleblowing dismissal

Overview: In high-stakes disciplinary or grievance matters – particularly involving senior staff – many businesses sensibly turn to external HR consultants or investigators to ensure objectivity, professionalism, and compliance. But are the external investigators “agents” of the business and/or are they therefore co-liable for the purposes of an employment claim?
No – the EAT held, in Handa v The Station Hotel and others, that unless external investigators take an active role in making the actual decision to dismiss, then they cannot be held personally liable for alleged discrimination or whistleblowing-related dismissal.

Facts: In Handa v The Station Hotel and others, the Claimant brought a claim of automatic unfair dismissal and whistleblowing detriment. He attempted to argue that two external HR consultants – Mr Duncan and Ms McDougall – were personally liable as “agents” of the employer, on the basis that their investigation reports had influenced the dismissal decision.
Mr Duncan had conducted an investigation into a grievance against the Claimant, and Ms McDougall subsequently conducted a disciplinary investigation and produced a report concluding that dismissal for gross misconduct would be appropriate. The employer, The Station Hotel, relied on that report to make its decision to dismiss.

Decision: The EAT rejected the argument that the consultants should be personally liable and ruled:

• External consultants can, in theory, be agents, but they must carry out a causative act or omission linked to the dismissal to attract liability.
• Neither consultant made nor implemented the dismissal decision – this remained with the employer.
• Even if the employer influenced their work, that alone did not amount to agency or legal liability.

The claims against both consultants were struck out for having no reasonable prospect of success.

Takeaway: This decision will bring relief to independent HR professionals and investigators. But it also underscores the need for clear engagement terms. These should clearly define roles, confirm that decision-making rests solely with the employer, and ideally include an indemnity clause in case of future legal claims.

2. Religion or belief discrimination: Supreme Court refuses permission to appeal in Higgs v Farmor’s School – where does this leave the law now?

Overview: The long-running case of Higgs v Farmor’s School appears to have come to an end, after the Supreme Court last month refused permission to appeal. This means that the current legal position is as set out in the Court of Appeal’s judgment in this case from earlier this year.

Law: Employers cannot treat employees less favourably because of their religion/belief or a manifestation of their beliefs unless, in the case of manifestation (expression) , the less favourable treatment has its root in how they have expressed their belief (rather than the belief itself), in which case the treatment will not be discriminatory provided it is proportionate and justified.

Facts: In Higgs, the Claimant was a secondary school counsellor and she was a Christian. She was dismissed for gross misconduct following Facebook posts she had made criticising relationship education in primary schools. Her criticism focused on homosexual and transgender issues. She claimed that her dismissal was discriminatory on grounds of her religious belief – 1) a lack of belief that someone could change their biological sex and 2) a belief that marriage is an institution between a man and a woman. This case is particularly relevant in light of the Supreme Court’s recent decision on what ‘sex’ means in the Equality Act 2010. You can find a useful guide here.

Decision: The Court of Appeal held that Ms Higgs’s Facebook posts were an expression of her protected beliefs. The school’s decision to dismiss her in response was discriminatory. The school claimed she was dismissed not for manifesting her beliefs, but for the tone of her posts and reputational concerns. The Court of Appeal held that this position was not proportionate or justified. In particular, Ms Higgs had not expressed these views at work or discriminated against pupils.

The Court of Appeal reinforced principles from the Employment Appeal Tribunal (EAT):

1. Individuals are entitled to express their beliefs, even if controversial or offensive to others.
2. Employers can restrict expressions if necessary to protect others’ rights and freedoms.
3. Justification for such limitations depends on the case, requiring assessment of:

• Whether the employer had a good enough reason.
• Whether the employer took the least intrusive route to achieve its objective.
• Whether the objective outweighed the limitation of the employee’s rights.

To aid employers, the EAT outlined key factors to consider:

• Content and tone of the expression .
• Extent of the expression.
• Audience awareness—did the employee expect a wide or limited reach?
• Impact on others’ rights and the employer’s business.
• Representation – was it clear the views were personal, or could they be seen as the employers?
• Power imbalance – was there a risk of coercion, especially in positions of influence?
• Business nature – was there a risk to vulnerable groups?
• Intrusiveness of employer’s response – was the restriction proportionate?

Takeaway: Given the refusal of the school’s appeal, this judgment now stands as a clear statement of the current legal position. HR teams must ensure any restrictions on religious expression are justified and minimally intrusive. Employers should document clear, objective reasons if limiting religious expressions to avoid claims of discrimination.

3. Wilko’s £2m Lesson: Do not overlook collective consultation

Overview: A recent tribunal ruling against high-street retailer, Wilko, serves as a costly reminder that even technical breaches of collective consultation law can carry a high price. Following its 2023 collapse, Wilko was found to have failed in its legal duty to properly consult with staff ahead of making large-scale redundancies. The result? Protective awards worth around £2 million across its former workforce.

Facts: The GMB union brought the claim on behalf of around 10,000 workers. While some consultation had taken place, the tribunal ruled it was not enough to meet the requirements under the Trade Union and Labour Relations (Consolidation) Act 1992. As a result, affected employees were awarded either 4- or 13-days’ gross pay – against a legal maximum of 90.
The tribunal acknowledged Wilko’s financial difficulties but made clear this was no excuse. The law does allow an exception where “special circumstances” make consultation impossible, but this is a high bar – and one Wilko could not meet. Even in administration or during a business collapse, employers are expected to inform and consult with staff as fully as possible.

Takeaway: This case highlights how even seemingly small failings can have a large cumulative cost. A four-day award per employee might sound minor, but when applied to thousands of staff, the financial risk quickly becomes significant.
What HR should do now:

• Make sure your collective consultation processes are ready to go if large-scale redundancies are being considered.
• Engage with employee or union representatives early and meaningfully.
• Do not assume that financial hardship exempts you from consultation duties.
• Be aware of changes in the law – the upcoming Employment Rights Bill proposes tougher penalties (upping the maximum award from 90 to 180 days’ pay) and wider consultation triggers.

Wilko’s experience is a cautionary tale for any employer with a large workforce: technical missteps can become million-pound problems. Assitionally, Labour’s ‘Plan to Make Work Pay’ has sparked considerable discussion, particularly around its proposed reforms to redundancy consultation requirements, read more here.

4.Employee who fell asleep at work was unfairly dismissed

Overview: Staying awake at work is one of the most fundamental requirements of almost every job. But if you fall asleep, should you be dismissed for gross misconduct? The recent case of Okoro v Bidvest Noonan (UK) Ltd serves as a reminder to employers that they should not jump to conclusions and should always consider wider circumstances and context.

Facts: In this case, Mr Okoro was a CCTV controller. He fell asleep while on duty for around 15 minutes. His employer, following an investigation, dismissed him for gross misconduct. Mr Okoro claimed unfair dismissal. His employer was required to satisfy the test from Bhs v Burchell: that it held a reasonable belief, following a reasonable investigation, that the employee was guilty of misconduct. The Employment tribunal was satisfied that this test was satisfied in this case. However, it still found Mr Okoro’s dismissal to be unfair, as it concluded that, bearing in mind the wider circumstances, dismissal was not within the band of reasonable responses that a reasonable employer might reach (Sainsbury’s v Hitt). In particular it considered:

• Mr Okoro had 16 years’ service.
• He had a clean disciplinary record.
• He had only been asleep for a very short period of time.
• Falling asleep at work was not included in the business’s policy as an example of gross misconduct
• There were no adverse consequences to the employer as a result of the incident.

Decision: Mr Okoro was awarded over £20,000 in compensation. Employers faced with potentially serious disciplinary allegations should always bear in mind:

• Context: Allegations should be viewed in light of the wider circumstances, including whether the conduct was wilful.
• Policy: It is always going to be easier to justify dismissal where the conduct is listed as an example of gross misconduct in the employer’s disciplinary policy.
• Long service: An incident of misconduct from an otherwise exemplary long-serving employee should always be analysed more critically before a decision to dismiss is reached.

5. Redundancy and alternative employment: No half-measures will do

Overview: The Employment Rights Act 1996 lists redundancy as a potentially fair reason for dismissal. But the existence of a genuine redundancy situation or a sound selection process doesn’t guarantee a fair dismissal. Employers also have a duty to explore alternatives – especially the possibility of alternative employment. Too often, this part of the process becomes a ‘tick box’ exercise: pointing to a vacancies list and leaving the rest to the employee. A recent case highlights how this approach could render an otherwise fair redundancy dismissal, unfair.

Facts: In Hendy Group v Kennedy, the employee was a training manager at a car dealership group and had more than a decade of previous experience as a car salesperson. When his training role was placed at risk, he applied for several internal vacancies – mainly sales roles – but was unsuccessful and later dismissed.

Decision: The Employment Appeal Tribunal found the dismissal unfair, despite accepting the redundancy was genuine and the selection fair. The reason? The employer failed to meet its legal obligation to make reasonable efforts to find the employee another role within the business.

Key failings included:

• The employee had to search for vacancies as if he were an external candidate.
• HR provided no help in identifying suitable roles.
• After early rejections, he was told future sales role applications would be unsuccessful as they questioned his motives in applying for them.
• Managers were not informed he was at risk of redundancy.
• Some HR communication went to an email address he couldn’t access.
• There was no evidence of proactive job matching.
  The EAT concluded that, had the employer acted fairly, the employee likely would have secured another job and avoided redundancy. He was awarded full losses, with no Polkey reduction (the deduction which can be made to unfair dismissal compensation if a tribunal believes that dismissal would have happened even if the error had not been made).

Takeaway: Properly supporting at-risk employees in finding alternative roles is fundamental to a fair redundancy process. Be proactive, supportive, and transparent.

6.No duty to make an adjustment if it would not remove the disadvantage

Overview: Under the Equality Act 2010, employers have a legal duty to make reasonable adjustments for disabled employees. These adjustments aim to remove or reduce disadvantages caused by a disability, and can include changes to the workplace, providing assistive equipment, or adapting how tasks are carried out. The goal is to enable disabled employees to access, stay in, and thrive in work.
An employer must consider reasonable adjustments where:

• They know, or could have reasonably expected to know, an employee has a disability;
• The employee is experiencing difficulties with any part of their job related to their disability;
• A disabled employee or applicant requests adjustments; or
• Absence or sickness or delay in returning to work because of, or linked to their disability.

But the law also recognises limits. If the proposed change won’t remove the disadvantage, it may not be a ‘reasonable’ adjustment at all.

Facts: This was underlined in the recent case of Hindmarch v North East Ambulance NHS Foundation Trust. Mr Hindmarch, a non-emergency ambulance driver, had severe anxiety – accepted as a disability. During the COVID-19 pandemic, he was too anxious to attend work due to concerns about catching the virus. Emergency staff were issued high-grade FFP3 masks, while he was given an FFP2 mask. He argued that an FFP3 mask would have helped him to return to work. When he was later dismissed, he brought claims for unfair dismissal and failure to make reasonable adjustments.

Decision: The Employment Appeal Tribunal rejected his claim. The Trust were under a duty to take such steps as it was reasonable to have to take to avoid the disadvantage faced by Mr Hindmarch (his inability to attend work). However, on the evidence, there was no real prospect that of the provision of an FFP3 mask would have removed the disadvantage (i.e. enabled him to return from sick leave). Given that the adjustment would not have removed or reduced the disadvantage, it was not reasonable to expect the Trust to make it.

Key takeaway for HR: Reasonable adjustments must be tailored, realistic, and likely to make a difference. Where the adjustment won’t remove or reduce the disadvantage, employers are not required to make them.

7. Disability discrimination: Autism/ADHD diagnoses are relevant factors when considering substantial adverse effect

Law: Whether or not an employee meets the legal definition of a disabled person is a crucial starting point in any disability discrimination case. Under section 6 of the Equality Act 2010, a person is considered disabled if they have a physical or mental impairment that has a substantial, long-term adverse effect on their ability to carry out day-to-day activities.

This test is often misunderstood or applied too narrowly. A recent case, Stedman v Haven Leisure, offers a useful reminder of the correct approach.

Facts: Mr Stedman had diagnoses of Autism Spectrum Disorder (ASD) and ADHD. He applied for a job with Haven Leisure and, after being rejected, brought a claim for disability discrimination relating to how his application was handled. The employment tribunal ruled that his impairments did not meet the definition of disability. However, the Employment Appeal Tribunal (EAT) disagreed and found key errors:

• A disability only needs to affect one day-to-day activity in a substantial way.
• The tribunal wrongly weighed up what Mr Stedman could do against what he couldn’t – this was not the correct test. The focus should have been on what he could not do.
• The comparison should be between Mr Stedman with the impairment and how he would be without it.
  Notably, the EAT made an ‘obiter’ (non-binding) comment that a clinical diagnosis of ASD or ADHD can provide evidence of both the existence of an impairment and its functional impact. A clinical diagnosis of autism or ADHD means that the person has been assessed and judged by a clinician to have significant difficulties with certain areas of functioning. This usually indicates that their difficulties are more than minor or trivial.

Key Takeaway: When considering whether an individual is disabled under the Equality Act 2010, focus on what difficulties they experience in everyday life – not how well they appear to cope overall. And always remember, just one substantial impact is enough.

8. A carer paid by his brother using money from the local authority was not employed by the local authority

Overview: It’s a basic requirement when claiming employment rights that the claimant is, in fact, an employee of the respondent. But sometimes, especially in the context of care, the lines can be blurred. A recent Employment Appeal Tribunal (EAT) decision in Scully v Northamptonshire County Council clarifies the distinction between care funding arrangements and employment relationships.

Facts: Mr Scully cared for his brother, who received direct payments from the local authority to fund his own care. Mr Scully was paid using this money. He later brought employment claims – including for unpaid wages and discrimination – against the Council, arguing that he was effectively employed by them.
Both the tribunal and the EAT disagreed. The EAT found no express or implied contract of employment between Mr Scully and the Council. Several facts supported this conclusion:

• His payslips named his brother as the employer.
• Care cover was arranged by the family, not the Council.
• His mother had control over care arrangements, including dismissing carers.
• The Council provided no training, supervision, or management of Mr Scully’s work.
• There was no legal need to imply a contract with the Council, as a valid employment relationship could exist between Mr Scully and his brother – even if the brother lacked capacity (as a lack of capacity would have made a contract voidable but not void).

Key Takeaway: This case is a reminder that not all funding relationships create an employment relationship. For HR professionals, particularly in public or care sectors, it reinforces the importance of clear contracting and understanding of who holds the real legal responsibilities in care arrangements.

9. Can UK tribunal claims reach colleagues based abroad? This case says ‘Yes’

Overview: For HR teams in international businesses, one tricky question is whether UK employment tribunals can hear claims against colleagues who live and work overseas. A recent Employment Appeal Tribunal (EAT) decision offers some helpful clarity.

In Prahl, Hofvenstam & Ågeback v Lapinski, Mr Lapinski brought a discrimination claim against his LLP and three fellow members who were based in Sweden. The key issue was whether the UK tribunal had jurisdiction over the Swedish-based colleagues. The EAT said yes – and here’s why:

• The claim involved alleged breaches of the Equality Act 2010, giving the tribunal jurisdiction over the subject matter.
• The ‘close connection’ test (from the case of Lawson v Serco) was satisfied. The claims had strong ties to the UK, even though the colleagues worked in Sweden.
• The claim was validly served on the individuals under the Employment Tribunal Rules by sending it directly to them in Sweden. No extra international procedures were needed.
• While not essential to the outcome, the EAT also noted that there was an arguable case for jurisdiction under the Civil Jurisdiction and Judgments Act 1982. Even though the Act refers to employers and employees, it can be applied flexibly to include LLP members and their colleagues.

What does this mean for employers?
If your business spans borders, don’t assume overseas colleagues are out of reach of UK employment claims. Where there’s a close link to the UK and the claim falls under UK law, tribunals may well accept jurisdiction – and the tribunal simply posting a claim to a colleague overseas could be enough to get proceedings started.

10. And finally: “One rule for them; one rule for everyone else”

A claim of ‘one rule for them; one rule for everyone else’ was recently heard in the Birmingham Employment Tribunal. In Burns v Gitpod, the Claimant was sacked after getting drunk and allegedly falling asleep in a sauna on a work trip.

In ongoing tribunal proceedings, she claimed unfair dismissal and discrimination. The Respondent dismissed the Claimant for performance issues and for having been drunk on the trip. The Claimant admitted to being drunk but claimed that she had been treated differently because she was a woman. She alleged that male managers on the same trip were also drunk but received no sanction. Bringing her claims to the tribunal, Ms Burns said: “My male colleagues were drinking alcohol/drunk at the off-site but I was the only one who was dismissed… One of my male colleagues behaved in a far more damaging way for both his own reputation and for Gitpod after consuming alcohol at the off-site.”

The Claimant’s case that her dismissal was sex discrimination hinges on an assertion that, as a woman, her drunken behaviour was viewed as setting a bad example whereas her male colleagues were lauded as “tech bros” for exactly the same behaviour. Although the case is currently ongoing and no finding has been made, the factual matrix serves as a reminder to employers to treat employees consistently and fairly when considering taking disciplinary action. Similar conduct should, unless it is able to be distinguished on coherent grounds, be treated similarly. Understand the difference of Sexual harassment vs. harassment related to sex here.