Employment Law Round-Up, April 2025

Click the links below to read more about the changes in employment law for April 2025:

• • EHRC issues interim update on single-sex spaces after recent Supreme Court ruling
  • EAT rules part-time status must be the ‘sole reason’ for less favourable treatment in part-time Workers claims
  • Contractual requirement for flexibility did not entitle lorry driver to additional pay
  • Government guidance on statutory neonatal care leave and pay published
  • Court of Appeal rules external job applicants cannot bring whistleblowing detriment claims
  • Study finds nearly half of LGBTQ+ employees feel unsupported by employers’ HR departments

 

EHRC issues interim update on single-sex spaces after the Supreme Court’s recent ruling

On 16 April 2025, the Supreme Court handed down its judgment in For Women Scotland v Scottish Ministers [2025] UKSC 16, which confirmed that, for the purposes of the Equality Act 2010, someone who identifies as transgender does not change sex, even if they have a gender recognition certificate.

The EHRC has published an interim update on the practical consequences of this decision, including guidance on single-sex spaces. In workplaces, the EHRC states that:

• It is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing or washing facilities where these facilities are needed.
• For workplaces and services open to the public, the EHRC advises that trans women should not be permitted to use the women’s facilities and trans men should not be permitted to use the men’s facilities.
• Where possible, as well as single-sex facilities, mixed-sex toilets should be provided.

The update has received criticism for focusing on the legal position rather than giving practical advice to employers. The EHRC is currently updating its statutory and non-statutory guidance. It will start a consultation in May on how the practical implications of the judgment can best be reflected in the guidance. The EHRC has not yet confirmed the timeline for updating its Employment Code of Practice.

Following the Supreme Court’s ruling, Barclays has announced that it will prohibit transgender women from using female bathrooms in its buildings. It is one of the first companies to announce a change to its bathroom policy following the Supreme Court’s decision.

EAT rules part-time status must be the ‘sole reason’ for less favourable treatment in part-time workers claims

A recent Employment Appeal Tribunal (EAT) decision has confirmed that a part-time worker should not be treated less favourably by his employer than a comparable full-time worker.

In Mireku v London Underground Ltd [2025] EAT 57, the claimant alleged that he had been treated less favourably by his employer for cancellation of overtime. An Employment Tribunal rejected his claim, finding that the claimant’s overtime was cancelled for reasons not related to his part-time status.

The claimant appealed this decision, arguing that the tribunal had not applied the correct test for less favourable treatment. The EAT acknowledged that there is conflicting case law on the test for causation of less favourable treatment and confirmed that the claimant must show that their part-time status was the sole reason for any less favourable treatment by their employer.

The principles of this decision was recently endorsed by the higher Court of Appeal in the case of Augustine v Data Cars Ltd, where the Claimant was a part-time taxi driver who was required to pay a flat weekly circuit fee of £148 to the Respondent. The same fee was payable by all drivers, regardless of the number of hours they worked. The Claimant alleged part-time worker discrimination in relation to the flat-fee. The court found that part time worker status was not the sole reason for the application of the flat-fee. However, the Court remarked that the law in this area was in an unsatisfactory state and an appeal to the Supreme Court is therefore a possibility.

Contractual requirement for flexibility did not entitle lorry driver to additional pay

In a recent case, a lorry driver’s employment contract required him to work five shifts a week and the expectation was that each shift would be nine hours long. However, clause 13 of the contract stated that the lorry driver was required “to work such hours for each working shift as are necessary for the proper performance of your work duties”.

A review of the lorry drivers’ delivery routes found that several of them exceeded nine hours. As a result, a contract addendum was introduced which provided a salary increase for an additional two hours per week. This enabled the lorry drivers’ routes to be planned to a 47-hour week rather than a 45-hour week. The lorry driver was also contractually entitled to overtime for any additional full shift or half shift (at least 4.5 hours) worked a week. The lorry driver was not paid overtime if a normal shift took longer than expected, but less than an additional 4.5 hours’ work.

The lorry driver brought a tribunal claim for unlawful deduction from wages under Section 13 of the Employment Rights Act 1996. His shifts averaged at 10 hours and 7 minutes long from 2021 to 2022, and he argued that he should have received pro rata payments for the additional hours worked. The tribunal held that the claimant was entitled to pay for additional hours worked above the intended weekly average specified in his employment contract. The employer appealed this decision.

The Employment Appeal Tribunal (EAT) held that the tribunal was wrong and dismissed the lorry driver’s claim. The contract provided basic pay for working five shifts of varying length each week. There was no implied term that the lorry driver should receive pay for hours worked beyond his intended normal working hours, other than when the overtime provisions were engaged.

Government guidance on statutory neonatal care leave and pay published

The government has published new guidance on statutory entitlements for Neonatal Care Leave (NCL) and Neonatal Care Pay (SNCP), which came into effect on 6 April 2025. These entitlements allow employees to take leave and receive pay if their newborn requires neonatal care after birth, subject to eligibility criteria. 

Key details:

• Neonatal care refers to care for newborns in the first 28 days of life, including hospital or medical care, post-hospital care, or end-of-life care.
• Entitlement to NCL:

The baby must enter neonatal care within 28 days of birth.

The baby must stay in neonatal care for at least 7 consecutive days.

The baby must be born on or after 6 April 2025.

• An employee is entitled to up to 12 weeks of Neonatal Care Leave from their first day of employment.
• Statutory Neonatal Care Pay:

The pay is either £187.18 per week or 90% of the employee’s average weekly earnings (whichever is lower).

Guides and resources: 

1. Employer Guide: Covers entitlement, eligibility, employer record-keeping, financial assistance available, and employee rights, including how to cancel NCL/SNCP.
2. Employee Guide: Explains entitlement, eligibility, how to claim, and how to cancel NCL/SNCP.
3. Business Changes and SNCP: Guidance for employers on business changes (e.g., takeover, insolvency, redundancy) and how these affect SNCP.
4. Employment Types and SNCP: Different rules apply to agency workers, directors, and employees with multiple employers.
5. Employee Circumstances and SNCP: Explains how different employee situations can affect their eligibility for SNCP.
6. Manual Calculation of SNCP: A guide on manually calculating an employee’s SNCP entitlement.
7. Non-Eligibility Notice (NEO1): A form for employers to inform employees they are not entitled to SNCP.

All guidance is available on GOV.UK.

Court of Appeal rules external job applicants cannot bring whistleblowing detriment claims

The Employment Rights Act 1996 provides workers who blow the whistle with protection from detriment. However, the definition of ‘worker’ does not extend to job applicants, except for those applying for jobs in the NHS.

In this case, the claimant had applied for two jobs with the respondent, a local authority, and was unsuccessful on both occasions. The claimant made a complaint about the interviewers’ conduct that the respondent, after investigating the complaint, found it to be unsubstantiated. However, the respondent failed to offer the claimant a further review, in breach of its complaints policy. The claimant then issued tribunal proceedings, claiming that this failure to offer a further review subjected her to a detriment because she had made a protected disclosure. The claimant argued that protection from detriment for whistleblowing should be extended to include job applicants, given that the European Convention of Human Rights (ECHR) prohibits discrimination which effects freedom of expression.

An employment tribunal dismissed the claim, holding that any difference in treatment of the claimant was objectively justifiable. The claimant appealed this decision but the Employment Appeal Tribunal dismissed the appeal. The claimant appealed again and the Court of Appeal held that the exclusion of external job applicants from the whistleblowing detriment provisions in the ERA 1996 is justified and is compatible with the ECHR.

Study finds nearly half of LGBTQ+ employees feel unsupported by employers’ HR teams

A study carried out by Pride in Leadership that surveyed 1,017 LGBTQ+ individuals found that:

• 42% of respondents felt that their concerns about LGBTQ+-related issues were ‘brushed off’ by their employers’ HR teams
• 85% of respondents reported that they have encountered significant obstacles linked to their identity
• only 15% of respondents felt that their workplace was a safe space to share their identity
• a lack of representation in leadership was a major concern for respondents
• there were several barriers to LGBTQ+ career advancement, including a lack of inclusive workplace policies, experiences of discrimination and biased recruitment practices.

The study called for HR professionals to be more proactive in creating a supportive and inclusive work environment, by providing training on LGBTQ+ issues, implementing inclusive policies and promoting diversity and representation in leadership. It also recommended that employers work to eliminate biased recruitment processes and ensure that hiring processes are transparent and fair.