The top employment law cases to look out for in 2025
We’ve identified the cases which are likely to have a big impact on employment law and HR policies and practices over the next 12 months.
These cover:
- Conflicts of belief and freedom of expression
- Causing or inducing discrimination
- Single sex services
- Whistleblowing
- Employment status
Conflict of belief and freedom of expression
Last year we predicted that employers, who have dismissed or treated staff badly because they expressed views that didn't align with their organisational values and/or had offended other members of staff, would become unstuck.
We were pretty much on the money. There's been a number of high-profile cases which have examined belief discrimination (particularly gender critical/sex realist beliefs) with many employers finding themselves on the losing side including The Open University, Edinburgh Rape Crisis Centre, Westminster City Council and Social Work England.
Tribunals (and higher courts) have been asked to decide whether a range of other beliefs are likely to be protected, and more importantly, the extent to which individuals can lawfully express their beliefs at work. There are a number of cases dealing with the latter point that are due to be determined in the higher courts.
Can employers lawfully restrict how their staff manifest their protected beliefs and take action against those who breach their rules?
Mrs Higgs worked in a secondary school and re-posted someone else's post on her Facebook page which objected to the government's consultation on relationship and sex education in primary schools. The post said that it normalised single sex relationships, presented gender as a matter of choice, suppressed Christianity and “brainwashed” children.
A parent complained and Mrs Higgs was dismissed for gross misconduct. She brought a tribunal claim alleging that she had been unlawfully discriminated against and harassed by reason of her religion or belief.
The tribunal dismissed her claim. It said that a reasonable reading of her post was that she was homophobic and transphobic. And Mrs Higgs had been dismissed for the way she had expressed her protected beliefs and not because she held those beliefs.
Mrs Higgs appealed and the EAT set down basic principles that apply to these types of cases and remitted the case back to the same tribunal to consider. Before that hearing took place Mrs Higgs appealed to the Court of Appeal and that appeal was heard in October 2024. We expect the judgment to be handed down shortly.
A school chaplain delivered a sermon which opposed the school's “Educate and Celebrate” programme which was aimed at tackling homophobic and transphobic bullying. He believed that the programme conflicted with Christian teachings. His sermon encouraged pupils to form their own opinions and said they did not have to accept “the ideas and ideologies of LGBT activists” where they conflict with Christian values.
This sermon led to numerous complaints and he was dismissed for gross misconduct. He was later reinstated following a successful appeal, but was later made redundant.
The chaplain brought a claim of direct discrimination in respect of his religious beliefs. The tribunal accepted that his beliefs were protected, but rejected his claim. It found that he had been lawfully dismissed because of the way he had expressed his beliefs, rather than because he held those beliefs, which would have been unlawful. Following concerns arising from previous sermons, he had deliberately ignored prior advice from the senior leadership team about the risks to vulnerable children of acting in such a way and on the need to address sensitive topics with care in a classroom setting to avoid distressing those students.
The chaplain has appealed and his appeal is expected to be heard in the spring - after the Court of Appeal has handed down its judgment in Higgs v Farmor's School.
Corby v Advisory, Conciliation and Arbitration Service
Mr Corby, a conciliator at Acas, expressed his opposition to critical race theory (an academic concept which believes that racism is something that is embedded in legal systems and policies and is not just the produce of individual bias or prejudice). He advocated for a society where individuals are judged by their character, rather than their skin colour.
When Acas asked Mr Corby to delete a number of his posts on its internal social network which expressed his views on race and racism, he issued a claim, arguing that Acas had discriminated against him because of his protected beliefs.
The tribunal found that Mr Corby's beliefs were genuinely held, related to a substantial aspect of human life or behaviour, and were deeply held and carefully considered, affecting his way of life. His beliefs were consistent, logical, and structured, making them cogent and coherent. The tribunal concluded that his beliefs were worthy of respect in a democratic society and did not conflict with human dignity or the rights of others and were protected as a philosophical belief.
However, the tribunal went on to find that Mr Corby had not been subject to direct discrimination or harassment because of those beliefs. Mr Corby has appealed that decision, and we expect the EAT to hear the case by September 2025.
Miller v University of Bristol
Dr Miller is a professor of political sociology. He believes that Zionism is inherently racist, imperialist and colonial and expressed those views to his students, some of whom complained that his views were antisemitic. The university concluded that his views weren't antisemitic but he had breached its Acceptable Behaviour At Work policy and dismissed him.
He brought a claim in the tribunal arguing that his beliefs were protected and his dismissal for expressing those beliefs was unfair and amounted to direct discrimination.
The tribunal agreed that Dr Miller's beliefs were protected and that his dismissal was both discriminatory and unfair. The university had a legitimate aim (to ensure that there was no discrimination) but the steps it had taken to enforce this were disproportionate; it should have considered imposing a lesser sanction against him (such as a written warning).
The decision has been appealed, and the case is due to be heard by the Employment Appeal Tribunal by November 2025.
Mr Lister was a teacher with gender critical beliefs, including the belief that sex is binary and immutable and should not be confused with gender identity. When one of his students asked to be known by a male name and to be addressed using male pronouns, Mr Lister adopted what he referred to as a gender-neutral communication style which involved gesturing towards the student when asking questions. Mr Lister described transitioning as “irreversible” and voiced his opinion that “taking testosterone is likely to cause long-term medical problems and [they] would be reliant on the NHS, and the services could not be guaranteed for the future.”
During the disciplinary process Mr Lister said that he would not use the student's preferred name and there was no obligation on him to do so. He was dismissed for engaging in “emotionally manipulative behaviour” towards the student which put them at risk of emotional harm, and because he had failed to follow the college's Gender Reassignment Policy.
Mr Lister brought proceedings against the college, arguing that he had been treated unfavourably because of his gender critical beliefs and/or the way that he had manifested them. The tribunal accepted that his beliefs were protected philosophical beliefs but decided that his dismissal was a proportionate response to the way in which he had expressed them.
Mr Lister has appealed to the EAT and we expect the case to heard later this year.
Why do these belief cases matter?
Some employers still erroneously believe that their staff can hold protected beliefs but can't express them if their views don't align with organisational values or could offend other members of staff. Others appear to believe there is a hierarchy of protected characteristics and prioritise certain ones over others, possibly because of poor DEI training or allegiance to particular workplace schemes.
Whilst each case is determined on its own facts, these cases build up a picture which other employers can learn from.
Causing or inducing discrimination
To what extent are third party organisations liable for causing or inducing an employer to discriminate against a member of their staff?
In 2022, Ms Bailey, a barrister at Garden Court Chambers brought a successful claim against her chambers after she was discriminated against for holding gender critical beliefs including a belief about the “pernicious effect of Stonewall's campaign promoting gender self-identity”. She added Stonewall as a respondent to her claim, alleging that it had instructed, caused or induced that discrimination [one of its employees had complained to Garden Court that Ms Bailey's views had put it in a “very difficult position” vis a vis its membership of Stonewall's diversity champion scheme and that they trusted it “will do what is right”].
The tribunal accepted that this could be interpreted as Stonewall wanting Garden Chambers to get rid of Ms Bailey. But, it concluded that its complaint was “just a protest”.
Ms Bailey appealed this element of the decision to the EAT. It concluded that “but for” Stonewall's complaint, Ms Bailey would not have been discriminated against, but concluded that it wasn't reasonable to hold Stonewall liable for that outcome. That was down to Garden Chambers. In addition, the Stonewall staff member who had made these comments didn't have the requisite mental element necessary to establish a breach of the Equality Act.
Ms Bailey has appealed against that decision and the Court of Appeal is expected to hear her case towards the end of this year.
Why this case matters
This is the first significant decision on the extent to which third parties can be liable for instructing, causing or inducing discrimination under s111 Equality Act 2010. It may potentially, expose third parties to liability if they have encouraged employers to put in place policies which are discriminatory.
Single sex exemptions in the Equality Act 2010
Does the protected characteristic of sex mean biological sex or legal sex?
For Women Scotland v The Scottish Ministers
This is not an employment case. It's about whether guidance issued by the Scottish government which says that a woman includes someone who was born male but now has a gender recognition certificate (GRC) describing them as female is legally correct.
The Supreme Court has been asked to determine whether references to the word sex in the Equality Act 2010 should be read as being modified by a GRC so that a biological man with a GRC should be treated as a woman and vice versa.
The Supreme Court heard legal arguments on this issue last year and we expect them to publish their judgment in the spring.
Why is this case important?
The Equality Act contains a number of exceptions to the ‘non-discrimination’ rules. In the context of sex, these allow an employer or service provider to offer single sex services and to restrict job applications to people of a particular sex (with or without a GRC) if there is a genuine occupational requirement for the job to be undertaken by someone of that sex.
An employer who wants to rely on these exceptions must have a legitimate aim and demonstrate that the measures they have taken to achieve it are proportionate. These provisions aren't understood very well and aren't always straightforward to apply (or advise on) and many employers worry that if they exclude people with a GRC from being able to apply for a position restricted to people of one sex, they will be sued.
This case may provide employers with the certainty they need to enable them to make legally compliant decisions.
Whistleblowing
Can an external job applicant bring a whistleblowing claim?
Sullivan v Isle of Wight Council
Miss Sullivan unsuccessfully applied for two jobs at the Isle of Wight Council. She responded by making a number of allegations including that there had been financial irregularities at a charitable trust involving one of the council's managers. The council investigated and dismissed her complaints and refused to allow her to appeal against its decision.
Miss Sullivan argued that she had been subjected to a detriment (the refusal to allow her to appeal) because she had made protected disclosures. To succeed, she had to establish that she was a worker under the extended definition set out in the Employment Rights Act 1996.
The tribunal held that job applicants were not workers and Miss Sullivan's appeal to the EAT failed for the same reason. It concluded that Parliament had intended to exclude job applicants from whistleblower protection, and any amendments to include them would be for Parliament to make.
Miss Sullivan has appealed to the Court of Appeal which is due to hear the case in February 2025.
What about charity trustees?
MacLennan v British Psychological Society
Mr MacLennan was elected as President-Elect of the BPS (a registered charity). His role was terminated after a successful grievance was lodged against him and he issued proceedings against his former employer arguing that he had been subjected to detriments because he had made four protected disclosures prior to his appointment and nine during it.
The tribunal decided that the definition of worker didn't include trustees, who in the context of charities, are akin to volunteers. Mr Maclennan appealed to the EAT.
The EAT agreed with the tribunal's analysis of worker status relating to the ERA. However, they concluded that the employment tribunal had failed to properly consider the worker status question in the context of the European Convention on Human Rights. Whilst Mr MacLenna was a volunteer and wasn't paid, the tribunal should have considered a number of other factors. It suggested that there is a strong argument that being a trustee, President-elect or President is akin to occupational status. It remitted the case back to the tribunal to determine this issue.
Why do these cases matter?
A worker can bring a claim against their employer if they have been subjected to a detriment on the ground that they have made a protected disclosure.
The current understanding of the definition of “worker” for the purposes of whistleblowing is already quite broad and includes agency workers, workers who don't have to carry out work personally and can provide substitute labour, NHS practitioners and trainees.
It will, therefore, be interesting to see what the Court of Appeal have to say about whether it should be extended further to include job applicants. It will also be interesting to see what the tribunal has to say about charity trustees (although its decision won't be binding on any other tribunals).
Employment status: employee, worker or self-employed?
Is an individual engaged under a personal service company a worker?
Ryanair DAC and another v Lutz
Mr Lutz was engaged by MCG, an aviation recruitment company, to be part of Ryanair's pool of “contracted pilots” for a five-year period. There was a tripartite agreement between Mr Lutz, MCG, and Dishport (a personal service company which Mr Lutz had been told to set up in order to work for Ryanair).
Mr Lutz argued that he was a an “agency worker” under the Agency Workers Regulations 2010 and a crew member entitled to annual leave under the Civil Aviation (Working Time) Regulations 2004 (CAWTR).
MCG and Ryanair argued that Mr Lutz was self-employed, and he wasn't therefore entitled to paid annual leave. They pointed to the contractual documents between the parties which included a substitution clause.
The tribunal (relying on the Supreme Court's decision in Uber) found that the contractual arrangements between the parties don't determine the factual reality of their relationship. Here, Mr Lutz had to perform his services personally and the substitution clause was a sham.
Ryanair and MCG's appeal failed. The EAT found no error in the tribunal's decision and affirmed that Mr Lutz was an agency worker and entitled to the associated rights appropriate to that status.
They have appealed to the Court of Appeal which is due to hear the case in the spring.
Why does this matter?
Whilst this case is set in the world of aviation and will have significant implications for the many pilots who operate under similar arrangements, its application is much wider.
Engaging individuals through an intermediatory is not enough to conclusively point to self employment. Employers can't hide behind cleverly worded contracts to avoid adverse decisions against them - instead the courts will start by looking at the reality of the relationship and will ignore anything in the contractual terms that is inconsistent with those findings.
Are volunteers workers with employment rights?
Groom v Maritime and Coastguard Agency
Back in 2013, the Supreme Court in X v Mid Sussex Citizens Advice Bureau held that UK discrimination legislation did not protect volunteers, nor was the UK required to protect them under the European Framework Directive. Accordingly, volunteers will only be protected if they are, in fact, workers.
Mr Groom worked as a volunteer coastal rescue officer for over 20 years. He had a volunteer handbook which indicated that members of the Coastguard Service were entirely voluntary but had to folow a code of conduct. Volunteers were allowed to submit claims to be paid for certain activities to cover minor costs they had incurred and compensate them for disruption to their personal life and unsocial hours.
Mr Groom was accused of misconduct and following a disciplinary hearing, his membership of the Coastguard Service was terminated with immediate effect. He was issued with a P45.
He argued that he was a worker and should have been given the opportunity to be accompanied at the disciplinary hearing.
The tribunal decided that Mr Groom was not a worker because there was no contract between him and the Coastguard and the parties had a “genuinely voluntary relationship”. Mr Groom appealed.
The EAT said that the term volunteer is not a term of art. The key issue is whether there is a contract between the parties and, if so, what was the nature of that contract. In this case there was “plainly” a contract between Mr Groom and the Coastguard which included the right for Mr Groom to be paid. The fact that other volunteers didn't choose to submit claims was irrelevant. Mr Groom was a worker when he undertook activities for which he could be paid - but not necessarily when he was doing things that didn't attract payment.
This case has been appealed to the Court of Appeal who are expected to hear it in November 2025.
Why does this matter?
Many organisations engage volunteers. Genuine volunteers don't have any employment rights even if they are reimbursed for expenses they have genuinely incurred.
The Court of Appeal may set out further guidance to help employers decide if their volunteer has morphed, perhaps over time, to a worker.
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