EmpLaw Newsletter March 2025

Christian counsellor wins landmark religion or belief discrimination claim

The Court of Appeal has handed down its highly-anticipated judgment in Higgs v Farmor’s School. The case concerned a Christian Claimant who was a secondary school counsellor. She was sacked for gross misconduct following Facebook posts she had made criticising relationship education in primary schools. Her criticism focused on transgender issues. She claimed that her dismissal was discriminatory on grounds of her religious belief – both a lack of belief that someone could change their biological sex and a belief that marriage is an institution between a man and a woman.

In order to fully understand this case, it’s important to look at the special way in which direct religion or belief discrimination operates. Direct discrimination typically means treating someone unfairly due to a protected characteristic, with no justification possible (except for age discrimination). However, religion or belief differs from other characteristics like race or sex because, if you hold a belief, it doesn’t mean anything unless you are able to tell people about it. It is this (referred to as ‘manifestation’) which puts religion or belief discrimination in a particularly interesting position.

This is how the law sees it:

1. Employers cannot treat employees unfairly because of their religion or belief.
2. Article 9 of the European Convention on Human Rights protects freedom of religion, including the right to manifest beliefs.
3. Whether an action counts as manifestation depends on its connection to the belief.
4. If an employer penalises an employee for how they manifest their belief (rather than the belief itself), the action must be proportionate and justified.

Essentially, direct discrimination based on manifestation of religion or belief is unlawful unless the manifestation is objectionable, and the employer’s response is justified.

Higgs v Farmor’s School: What happened?

The Court of Appeal held that the Claimant’s Facebook posts were a manifestation of her protected beliefs. The Respondent’s decision to dismiss her in response was discriminatory. The Respondent 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, the Claimant had not expressed these views at work or discriminated against pupils.

How employers should handle religious expression

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

• Individuals are entitled to manifest their beliefs, even if controversial or offensive to others.
• Employers can restrict manifestations if necessary to protect others' rights and freedoms.
• Justification for such limitations depends on the case, requiring assessment of:
  1. Whether the employer had a good enough reason.
  2. Whether the employer took the least intrusive route to achieve its objective.
  3. 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 manifestation.
• Extent of the manifestation.
• 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?

Key takeaways for employers

HR teams must ensure any restrictions on religious expression are justified and minimally intrusive. Employers should document clear, objective reasons if limiting religious manifestations to avoid claims of discrimination.

Employment status of game show contestants

It was recently widely reported that Wynne Evans (the operatic character from the ‘Go Compare’ adverts) was considering ‘taking the BBC to tribunal’ after being removed from the BBC’s Strictly Come Dancing Tour. His removal came after he was found to have made, on camera, a crude remark about one of the tour hosts. In addition to leaving the tour, he has stepped away from his BBC Wales radio show for a period.

It is understandable that Mr Evans would want to come out fighting. After all, appearing on Strictly Come Dancing is meant to boost your career, not damage it. However, his alleged comments about taking the BBC to an employment tribunal do raise a few HR eyebrows: what, exactly, is the employment status of a contestant on a TV show?

Over ten years ago, contestants on a French reality TV show succeeded in arguing that they had ‘worker’ rights such that they were entitled to receive paid overtime. In the UK, employment status is a question of fact, established by looking at the key issues of control, mutuality of obligation and other factors:

• Is there a mutuality of obligation? – the contestants train and dance on camera in return for financial compensation.
• Is there a requirement for personal service? Yes, contestants can’t choose to send someone else to dance instead.
• What level of control do Strictly have over the contestant? – Strictly controls when tasks will be performed and completed by.

There is a good and valid argument that contestants on Strictly Come Dancing meet all of these criteria, in part if not in full.

So, perhaps Wynne Evans could ‘take the BBC to tribunal’, but what claim would he be making? He has only been part of the ‘Strictly family’ since last September so does not have the two years’ service required to claim unfair dismissal. Maybe what he is suggesting is that the BBC did not have the contractual right to remove him from the tour and he will be claiming for breach of contract. Only time will tell.

How to calculate injury to feelings in discrimination cases

Injury to feelings awards compensate employees for the emotional distress caused by discrimination, rather than financial losses like lost earnings. These awards are subjective, making it often difficult for employers to assess risk. However, the Vento bands provide a framework for categorising awards based on severity.

A recent case, Graham v. a large haulage company, highlights how tribunals assess injury to feelings. The claimant alleged pregnancy and maternity discrimination, but only some claims succeeded. Notably, the employer failed to address her grievance, partly due to an IT issue. The tribunal initially awarded £10,000 (the lower end of the middle Vento band), despite the claimant providing minimal evidence of distress. She simply stated she had been "shocked and upset."

The Employment Appeal Tribunal (EAT) overturned this award, reducing it to £2,000 plus interest, emphasising that claimants should provide clear evidence of their distress. The EAT suggested key factors to consider when assessing injury to feelings:

• The claimant’s description of their emotional impact
• The duration of the distress
• The effect on work and personal life

The EAT also noted that overt discrimination, public incidents, disciplinary threats, or workplace isolation could justify a higher award.

For employers, this case reinforces the importance of challenging vague or unsubstantiated claims as to level of injury to feelings. The principles set-out by the EAT can be an important tool in settlement discussions or when preparing a counter-schedule of loss. By understanding the factors influencing awards, HR teams can better assess risk and approach negotiations strategically.

Employment tribunals must not substitute their own view for that of the employer

When an employee is dismissed for misconduct and claims unfair dismissal, the Employment tribunal have to apply the following test when considering whether the dismissal was fair:

1. Did the employer hold a reasonable belief, following a reasonable investigation, that the employee was guilty of misconduct (BHS v Burchell)?
2. Was dismissal within the band of reasonable responses which it was open to the employer to have (Sainsbury’s v Hitt)?

In considering these questions, it is the employer’s view that is important. Provided that the employer conducted a reasonable investigation, the fact that there were other matters it could have looked into is irrelevant. Similarly, provided that dismissal was a reasonable response for the employer to have, the fact that another response (for example, a warning) would also have been reasonable does not make the employer’s decision unfair.

The risk of employment tribunals overstepping their role was highlighted recently in Taylor v Metroline. The claimant, a bus driver, was dismissed for gross misconduct after a physical altercation in which he left his cab unattended—against company policy. He claimed unfair dismissal, and while the tribunal accepted that the employer genuinely believed he had committed misconduct, it still found the dismissal substantively unfair, citing flaws in the disciplinary process.

The Employment Appeal Tribunal overturned this decision, ruling that the tribunal had improperly substituted its own judgment for that of the employer. Key errors included:

• Listing procedural flaws but failing to consider whether they made dismissal outside the range of reasonable responses.
• Criticising the employer for not obtaining further evidence, without assessing whether this decision was reasonable.
• Reviewing CCTV from a similar case and overriding the employer’s rationale for treating the two cases differently.

The case will now need to be heard again by a different tribunal judge. It serves as a helpful reminder to employers that, provided that they are able to explain why they have reached the conclusion they have, and that that conclusion is supported by evidence, the fact that another conclusion could have been fairly reached is not relevant to the issue of fairness.

Neonatal Care Leave

To keep HR departments on their toes as they wait for the Employment Rights Bill to be passed, the government has confirmed that the right to neonatal leave and pay will come into force on 6^th April this year. Under the new law, eligible employees have a right to take up to 12 weeks’ leave where their child requires seven (or more) days of continuous neonatal care starting within the first 28 days following their birth

The government has now published regulations supporting the introduction of this new right. The Neonatal Care Leave and Miscellaneous Amendments Regulations 2025 set out the details of eligibility, notification requirements and entitlement. Separately, The Statutory Neonatal Care Pay (General) Regulations 2025 set out the regime for payment during periods of neonatal leave.

HR will need to prepare policies setting out this new right. Managers will need to be aware and be ready to signpost the new right to their reports. Some key points to note include:

• The right only applies to employees. It does not apply to workers.
• It will be a “day one” right, i.e. there will be no qualifying period of service required.
• Parents will not be required to provide proof of their child receiving neonatal care.
• Eligible employees are entitled to one week's leave for every week their child spends in neonatal care, capped at a maximum of twelve weeks.
• The leave may be taken while the child is receiving the care or after, as long as it is taken before the end of 68 weeks beginning with the date of the child’s birth.
• Where an employee takes neonatal care leave during a period where the child is receiving neonatal care (or in the seven days immediately following discharge), then the employee is able to take neonatal care leave in non-consecutive weeks.  This is known as ‘tier 1’ leave.
• Where an employee takes accrued neonatal care leave at any point after seven days has elapsed since the child’s discharge from neonatal care, then the employee must take any accrued leave in consecutive weeks. This is known as ‘tier 2’ leave.

Neonatal care leave does not reduce the length of any other statutory leave entitlement.

Employment tribunal ruling challenges unlawful deductions limits

A recent Employment Tribunal case, Afshar & Others v Addison Lee, raises concerns for employers regarding unlawful deductions from wages. The case primarily focused on whether private hire drivers were genuinely self-employed, or workers entitled to holiday pay and minimum wage. The tribunal ruled they were workers and should have received holiday pay - but hadn’t.

This led to a key question: How much unpaid holiday could they claim?

Unlawful deductions from wages: the law

Under Section 13 of the Employment Rights Act 1996, employees can claim unlawful deductions if their wages - including holiday pay - are underpaid. Claims must be filed within three months of the last deduction, or if deductions form a series, within three months of the last in that sequence.

Previously, claims were unlimited, but in 2015, the government introduced a two-year cap on backdated claims via the Deduction from Wages (Limitation) Regulations 2014 (the Regulations). This was aimed at preventing large retrospective holiday pay claims.

The Tribunal’s surprising conclusion

In Afshar v Addison Lee, the tribunal found this two-year limit unlawful. Parliament relied on the European Communities Act 1972 to impose it, but EU law doesn’t specify a cap on holiday pay recovery. Additionally, the Regulations restricted claims going beyond holiday pay, including national minimum wage claims.

The tribunal ruled the two-year limit invalid, meaning claims could potentially go back further. However, the judge acknowledged that this conclusion could be challenged and overturned.

What this means for employers

1. Gig economy firms who deny holiday pay like Addison Lee may not face new risks - they already face unlimited back-pay claims due to Smith v Pimlico Plumbers, which ruled that untaken holiday which the worker has not had the opportunity to take carries-over from one year to the next.
2. Workers filing wage claims should argue that the two-year limit is invalid per Afshar.
3. The government might introduce new laws to reinstate the two-year limit validly.

For now, this ruling isn’t binding, but if upheld, it could significantly increase backdated wage claims.

5 things all employers ought to know about suspending employees

Suspension can be a useful tool when handling serious misconduct allegations, allowing an employer to preserve evidence and prevent witness intimidation. However, it must be used fairly and reasonably to avoid legal risks. Here are five key points all employers should know:

1. You cannot usually move a suspended employee onto sick pay
   If an employee goes off sick during suspension, the employer cannot switch them to sick pay unless the contract explicitly allows it (Wright v. Seed). HR should review employment contracts to ensure suspension clauses are clear.
2. Unpaid suspension is likely unlawful
   Suspension should usually be on full pay, as it is a neutral act. Suspending without pay prejudges the disciplinary process and could be a fundamental breach of contract, leading to constructive dismissal claims. Even if a contract allows unpaid suspension, it must be exercised reasonably.
3. Suspension should not be automatic
   In Gogay v. Hertfordshire CC, an unjustified suspension breached trust and confidence, leading to constructive dismissal. Employers must ensure suspension is proportionate and necessary, not a default response.
4. There must be a justifiable reason
   Suspension should only be used to protect an investigation, prevent misconduct, or safeguard others. Employers should first consider alternatives like temporary redeployment.
5. Suspension must be reviewed regularly
   The Acas Code states that employers must keep suspension under review and avoid unnecessary delays. A prolonged or unjustified suspension could result in constructive dismissal or breach of contract claims. 

Employee who hid previous gross misconduct dismissal on application form was fairly dismissed

Acts of dishonesty are usually clear for all to see. They do not require much in the way of forensic investigation or nuanced consideration. An employee has either lied, or they haven’t. If they have lied, the employer is then able to take a view as to the appropriate disciplinary sanction flowing from the behaviour.

Where the evidence is not so clear-cut, a recent case highlights that, provided that the employer forms a ‘reasonable’ view on the evidence, any flowing dismissal can still be fair. The test of fairness in misconduct cases is that the employee holds a reasonable belief following a reasonable investigation that the employee has committed an act of gross misconduct. There does not need to be irrefutable proof. 

In Easton v Secretary of State for the Home Department (Border Force), the Claimant applied for a job with the Respondent. The application form included a free-text box for ‘Employment History,’ where he listed only years of employment. This concealed a three-month gap after he had been dismissed for gross misconduct from another Home Office role. He did not mention the dismissal or the gap during his interview.

After he was hired, the Respondent discovered his previous dismissal and lack of disclosure. As a result, he was dismissed for gross misconduct. The Claimant brought an unfair dismissal claim.

The employment tribunal held that the dismissal was fair. The Respondent had reasonably concluded, after investigation, that the Claimant had deliberately failed to disclose his previous dismissal and unemployment period. The Claimant appealed, arguing that the Tribunal had not applied sufficient weight to the fact he was being punished for failing to provide information which had not been specifically requested on the form.

The Employment Appeal Tribunal dismissed the appeal, finding that the Respondent had been entitled to conclude that a reasonable applicant would understand that an ‘Employment History’ section required a full and transparent account, including any gaps. It was reasonable for the Respondent to conclude that the Claimant had used years of employment to deliberately conceal the gap.

Decision-makers are able to make findings of fact based on the evidence placed before them. The fact that the employee puts forward an alternative (honest) reason for their behaviour does not mean that the decision-maker is required to accept that reason.

Understanding workplace fraud

Fraud in the workplace is a serious offence that can harm businesses financially and damage trust within teams. It involves deliberate deception for financial or personal gain, and while not all fraud is criminally prosecutable, the most severe cases may fall under the Fraud Act 2006.

Understanding workplace fraud is about to become all the more imperative for businesses. From 1 September 2025, large organisations will be required to implement ‘reasonable prevention procedures’ for fraud or face unlimited fines. So now is a good time for HR to get to grips with ‘fraud’. At the very least, a policy will need to be put in place explaining what fraud is, how to spot it and encouraging reporting. It should be linked to whistleblowing and disciplinary policies.

Fraud is generally listed as an example of gross misconduct in employer disciplinary policies, but it is a term which is not always well understood.

Types of fraud in the workplace

The Fraud Act outlines three key types of fraud:

1. Fraud by false representation: Providing untrue or misleading information. For example, an employee lying about qualifications to secure a promotion.
2. Fraud by failing to disclose information: Omitting legally required information, such as hiding an unspent criminal conviction during hiring.
3. Fraud by abuse of position: Misusing a position of trust, such as embezzling company funds or selling confidential data.

While fraud often involves subtle manipulations, employers should be vigilant for red flags, including unexplained discrepancies in financial records, employees living beyond their means, or secretive behaviour.

What can employers do?

• Preventative measures: Regularly update policies, conduct background checks during recruitment, establish strong internal controls and encourage employees to ‘speak up’ by having effective whistleblowing procedures in place.
• Act promptly on suspicion: Restrict system access, appoint an investigator, and consider suspension if evidence of fraud emerges.
• Take disciplinary action: Make sure that any disciplinary policy includes fraud as an example of gross misconduct and consider summary dismissal if an employee is found, following investigation, to have committed fraud.
• Recovery of losses: Fraud is both a civil and criminal offence. If the business has suffered financial loss as a result of employee fraud, then employers can involve the police or pursue civil claims, which have a lower burden of proof than criminal cases.

Taking proactive steps to prevent fraud and responding swiftly to allegations can help protect businesses while maintaining a culture of trust and accountability. It will also be crucially important to place businesses on the front foot in advance of the new duty to prevent fraud which comes into effect in September.

And finally, ‘Shhhhh…you’re in a library’

In an ironic twist, the British Library has lost a tribunal claim brought by an employee who claimed that her working environment was too noisy. Lidia Kogut sued the library for failing to make reasonable adjustments, according to the Evening Standard.

The tribunal held that Ms Kogut was a disabled person, meaning that the duty to make reasonable adjustments to the workplace was engaged. The provision of a quieter working environment was found to have been a reasonable adjustment which the library should have made to allow Ms Kogut to perform her duties. The library failed to provide her with a quieter workstation or offer an alternative role. She has reportedly been awarded £7,500 in compensation.