Employment law round-up – March 2025

Click the links below to read more about the changes in employment law from March 2025: 

• Court of Appeal held that incident of touching a pupil didn’t warrant dismissal of a school inspector 

• Employment Appeal Tribunal guidance on the test for worker status 

• The EAT: Racial harassment of an employed union official was not committed ‘in the course of employment’ 

• Supreme Court: Saudi Embassy did not have state immunity against discrimination claims of an employee 

Court of Appeal held that incident of touching a pupil didn’t warrant dismissal of a school inspector

This case involved a school inspector, Mr Hewston, who worked for Ofsted. It highlights the importance of:

• clear policies and training
• a fair disciplinary process
• providing clarity about actions that could lead to dismissal
• ensuring that disciplinary actions are proportionate to the misconduct

Background

In 2019, while carrying out an inspection, Mr Hewston brushed water off a 12-year-old pupil’s hair when the pupil came in from the rain. The pupil felt uncomfortable, and the school reported the incident to the local authority’s designated officer for safeguarding, who advised Ofsted to investigate. Although the officer suggested that Ofsted might consider training, Ofsted instead dismissed Mr Hewston for gross misconduct. During the disciplinary process, Mr Hewston said he would not repeat the behavior and was willing to undergo training.

An Employment Tribunal initially rejected Mr Hewston’s unfair dismissal claim, deciding that Ofsted’s investigation was fair and reasonable. Mr Hewston appealed, and the Employment Appeal Tribunal (EAT) found the dismissal was unfair. Ofsted appealed that ruling, but the Court of Appeal upheld the EAT’s decision.

Court of Appeal’s reasoning 

• The tribunal had not directly asked whether Mr Hewston could reasonably have understood that his action might lead to dismissal. There was no suggestion of an improper motive, and the incident did not raise safeguarding concerns. 

• Ofsted did not have a ‘no touch’ policy, and Mr Hewston hadn’t received relevant training. The court explained that dismissing someone for an act they could not have expected to be seen as serious misconduct is normally unfair. 

• Ofsted argued that Mr Hewston showed insufficient remorse. The court noted that an employer usually should not treat the employee’s conduct more seriously just because they do not show the ‘right’ level of insight, unless the employee repeatedly refuses to accept any wrongdoing, posing a real risk of future misconduct.  

• The court also rejected Ofsted’s argument that Mr Hewston only offered to undergo training to avoid further investigations; in the court’s view, his motivation did not undermine the fact that training would solve the issue. 

• The court decided Ofsted’s disciplinary process was unfair because Ofsted did not disclose the pupil’s statement or the school’s complaint letter to Mr Hewston. 

 

Employment Appeal Tribunal guidance on the test for worker status

The case highlights the continuing difficulty of determining when an individual is a worker or an employee. This judgment clarifies the overlap and differences between the test for worker status as opposed to the test for employment status.

Background

Dr Ter-Berg, a dentist, sold his group of dental practices to Simply Smile Manor House Ltd in 2013 and entered an agreement with them to provide dental services at specific premises. The contract stated it did not create an employment relationship, and it included a substitution clause requiring Dr Ter-Berg to try his best to find a locum if he could not work for more than 20 continuous days because of ill health or other reasons.

In 2018, Dr Ter-Berg brought a claim against Simply Smile Manor House Ltd and two of its directors, saying he was either an employee or, alternatively, a worker.

An Employment Tribunal decided he was not an employee. The tribunal applied the usual ‘irreducible minimum’ test for employment:

• personal service (and the nature of any substitution clause)
• control
• Mutuality of obligation (both to offer work and to accept it).

A subsequent tribunal hearing also found he was not a worker. For worker status (as set out in Section 230(3) of the Employment Rights Act 1996), three things must be shown:

1. There is a contract (express or implied) between the individual and the putative employer.
2. The individual must be required to perform the work personally.
3. The other party to the contract must not be a customer or client of the individual’s own business.

Employment Appeal Tribunal’s decision 

Dr Ter-Berg appealed to the EAT, which held: 

1. The tribunal was wrong when assessing the personal service requirement for worker status. Although the tribunal found there was only a conditional right to substitute (triggered by an inability to work for over 20 days), it had not properly concluded whether personal service was the reality. A conditional substitution clause normally still means personal service applies, unless there are ‘exceptional facts’ to override this. 
2. The tribunal incorrectly treated its finding that there was not enough ‘control’ for an employment contract as automatically ruling out worker status. The threshold for control is lower for worker status than for full employment. 
3. The tribunal wrongly assumed that both parties’ stated intention to exclude ‘employment’ necessarily also ruled out ‘worker’ status. A clause saying “no employment relationship” does not automatically exclude worker status. 

The EAT sent the case back to the Employment Tribunal for a fresh decision.

The EAT: Racial harassment of an employed union official was not committed ‘in the course of employment’

One reminder this case provides to employers is that having clear policies and comprehensive training on discrimination and harassment is crucial. It’s also important to regularly review and update training programmes and policies to ensure they remain effective and relevant.

Background 

Mr Hammond and Mr Campbell both worked for an NHS Trust. Mr Campbell was a Branch Secretary of the union, and Mr Hammond was trying to cancel his union membership. When Mr Hammond was still being charged union fees, he went to Mr Campbell’s office (during a work break) to request a refund. Mr Campbell refused, and Mr Hammond made a racist comment. 

 The Employment Tribunal decided the trust was not liable under Section 109(1) of the Equality Act 2020, because the comment was not made ‘in the course of employment.’ Mr Campbell appealed, but the EAT upheld the tribunal’s ruling. Although the incident happened on trust premises during working hours, it was seen as a personal dispute about union fees rather than part of Mr Hammond’s employment. 

Employer liability

• • Under section 109(1) of the Equality Act 2020, an employer can be liable for acts of discrimination, harassment or victimisation made by an employee “in the course of employment.”
  • Section 109(4) provides a defence if the employer can show it took “all reasonable steps” to prevent such discrimination. The EAT found the trust had done enough here: induction training on core values, annual assessments referencing the trust’s values, mandatory equality and diversity training, and displayed statements of its values in the workplace.

 

Supreme Court: Saudi Embassy did not have state immunity against discrimination claims of an employee

Background 

 In this case, Mrs Constantine was employed by the Saudi Embassy in an administrative role. She brought claims of direct discrimination and harassment related to religion or belief. The embassy argued it was immune under the State Immunity Act 1978. An Employment Tribunal decided immunity did not apply because employing someone in an administrative role was not an exercise of sovereign authority. The EAT agreed. The embassy appealed to the Court of Appeal but did not attend the hearing, so the appeal was dismissed for non-appearance. 

Supreme Court decision

The Supreme Court confirmed that the embassy was not entitled to state immunity for these claims. It noted that the law was updated by the State Immunity Act 1978 (Remedial) Order 2023, following the Supreme Court’s earlier judgment in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017]. The earlier case established that giving absolute immunity for all employment-related claims went beyond what international law required and breached human rights.

Now, immunity only covers actions taken under sovereign authority. The Saudi Embassy’s treatment of an administrative employee did not fall into that category, and there was no evidence the dismissal was related to any sovereign function. The Court also gave guidance on evaluating whether certain technical or administrative positions at an embassy might be so closely linked to government functions that they warrant immunity. However, in this situation, the embassy did not meet that standard.