In the most recent edition of our Need to Know employment law newsletter we look at the amendments in the Employment Rights Bill as it enters Committee Stage in House of Lords, whether a single incident of ‘touching’ justify dismissal and the risky presumption that legal advice means competent legal advice.
- Employment Rights Bill enters Committee Stage in House of Lords
- Can a single incident of ‘touching’ justify dismissal?
- ‘Surely his lawyer told him that!’ – Presuming that legal advice means competent legal advice
We also have included our usual HR Bullets – which cover other significant employment law updates from the past month.
HR Bullets
- The Court of Appeal recognised that missing records could potentially lead to adverse inferences when challenging expert evidence. However, in this specific case, the argument was unsuccessful. The ruling was made in the context of an employee’s asbestos exposure and the employer’s failure to maintain proper air-monitoring records;
Johnstone v Fawcett’s Garage (Newbury) Ltd [2025] EWCA Civ 467 - The Court of Appeal clarified that expert assessors primarily assist in evaluating evidence rather than providing disclosable expert opinions, as demonstrated in a property possession claim, where the Claimant alleged disability discrimination;
Laidley v Metropolitan Housing Trust Ltd [2025] EWCA Civ 448 - The Employment Appeal Tribunal (EAT) found that the Employment Tribunal (ET) had incorrectly ruled that a lorry driver was entitled to extra pay for hours worked beyond the expected weekly average. The EAT clarified that the driver’s employment contract only guaranteed basic pay for five shifts of varying lengths per week and that flexibility in shift duration did not create an enforceable contractual obligation for additional payment;
Brake Bros Ltd v Hudek [2025] EAT 53 - The ET ruled that Gold Panda and Pandeli’s (two limited companies) attempts to be struck off from the Register of Companies during an ongoing ET claim constituted “unreasonable conduct” leading to both companies being ordered to cover the Claimant’s legal costs;
O’Keefe v Gold Panda and Pandeli [2025] EAT 47 - The Supreme Court ruled that gender definitions in the Equality Act 2010 are based on biological sex, excluding trans women with gender recognition certificates, while reaffirming that trans individuals remain legally protected under the protected characteristic of gender reassignment or biological sex (or perceived biological sex);
For Scotland Ltd v Scottish Ministers [2025] UKSC 16 - The EAT overturned a £20,000 costs award against a Claimant who initially brought a race discrimination claim without legal representation but later instructed solicitors. The ET wrongly assumed that once legally represented, the Claimant must have been advised their case had no reasonable chance of success, overlooking the challenges faced by self-represented litigants in assessing the strength of a discrimination claim;
Madu v Loughborough College [2025] EAT 52 - The EAT upheld an ET ruling that there was no unfair treatment based on part-time status. The Claimant argued they were treated unfairly because they worked part-time, but the ET found other reasons for the treatment that had nothing to do with their working hours. The Claimant appealed, saying the ET had used the wrong test to decide the case. The EAT clarified that under the law, part-time status must be the only reason for unfair treatment, not just one of the main reasons;
Augustine v Data Cars Ltd [2024] EAT 117 - The EAT found that the ET had erred when determining remedies following a Claimant’s success in multiple claims (including for unfair dismissal and disability discrimination). The ET held that the Claimant took reasonable steps to mitigate their loss, so there was no compensation reduction for loss of earnings. Additionally, there was a single injury to feelings award in respect of both the pre-dismissal discrimination and the discriminatory dismissal itself, and the ET went on to gross up the full award. Permitting the Respondent’s appeal, the EAT clarified that only injury to feelings awards relating to dismissal – and not in relation to discriminatory conduct – are subject to tax. Whilst leaving the compensatory award unchanged, the EAT criticised the ET for failing to sufficiently explain to the Respondent how the Claimant had mitigated their losses;
Wealmoor Ltd v Poniatowski [2025] EAT 48 - The EAT found that the ET had wrongly refused the Claimant’s request for information in a disability discrimination case without giving a clear, reasoned explanation. The request included questions on disabled employees and workplace adjustments, but the ET rejected it, saying it was unclear how the information would help. The EAT ruled that the ET should have properly considered the relevance of each question and explained its decision based on the three broad categories the request covered;
Bari v Richmond and Wandsworth Councils [2025] EAT 54