In a landmark ruling, the Supreme Court clarified the legal interpretation of the words ‘sex’, ‘woman’ and ‘man’ in Sections 11 and 212(1) of the Equality Act (EA) 2010 with respect to gender reassignment and sexual discrimination following a challenge by For Women Scotland (FWS), a leading feminist organisation. FWS had challenged the statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018 which stipulated that a trans woman with a full Gender Recognition Certificate (GRC) should be treated as a woman for the purposes of achieving the gender representation objective of 50% women on public boards. FWS argued that this interpretation was unlawful and outside the legislative competence of the Scottish Parliament. FWS contended that the definition of a ‘woman’ under the EA 2010 refers to biological sex, and a trans woman with a GRC is not a woman under this Act, while the Scottish Ministers argued that woman refers to ‘certificated sex’.

The Supreme Court unanimously allows the appeal and ruled that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex citing the centrality of a woman’s capacity for pregnancy and giving birth, declaring that such provisions are “unworkable unless 'man' and 'woman' have a biological meaning”. Crucially, they further noted that the Sex Discrimination Act 1975 defines a ‘man’ and ‘woman’ in relation to biological sex and that “interpreting 'sex' as certificated sex would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way [thus] creating heterogeneous groupings.”

This decision has significant implications for the interpretation of anti-discrimination law, ensuring that the protections afforded by the EA 2010 are applied consistently and coherently. Although this case is not an employment case, prima facie, the ruling will impact separate-sex and single-sex services and will have important implications for gender pay gap reporting. However, this judgement should not be regarded as diminishing the protections afforded to trans employees in relation to discrimination, harassment, and victimisation on the grounds of gender reassignment. Employers must continue to create a workplace that is inclusive and respectful of trans employees. However, for the purposes of the Equality Act 2010, they will not be recognised on the basis of their certified sex.

An Employment Tribunal confirmed that using an employer's preferred method of communicating with employees to send offensive messages can serve as a ground for dismissal. A claimant was employed from September 2017 as a graduate trainee and then as a software developer until April 2021, at which juncture he was dismissed for gross misconduct. He subsequently brought three grievances during his employment, all of which were dismissed. The issue surrounded ‘Slack’ messages between the claimant and two colleagues sent during working hours using the respondent's systems. The claimant was suspended on 8 January 2021 while still on sick leave, pending a disciplinary investigation.

In a letter dated 15 January 2021, the claimant was invited to a disciplinary hearing. Attached to the letter was a five-page summary of comments alleging inappropriate and offensive language. Despite not attending the disciplinary hearing, the claimant shared his mitigating circumstances on 24 February 2021 and refused to disclose a copy of the Occupational Psychologist's report outlining his disabilities.  The Tribunal concurred that Risby had been correctly applied and that the dismissal was a proportionate response to certain of the respondent's legitimate aims under Section 15(1)(b) of the Equality Act 2010, given the foul and abusive nature of the language directed towards colleagues. The claimant’s medical arguments had, however, not been originally submitted and could not then be produced on appeal to substantiate a direct link between the language itself and the disability.

This judgement is a clear warning that any abuse directed towards colleagues made during working hours using the employer’s preferred communication system can be considered misconduct and result in dismissal. All employees should be cautioned that any miscommunications on work messaging systems are thus potential grounds for dismissal and, while extreme disabilities or mental health conditions might serve as mitigating factors, any claimant will need robust medical evidence to support such a defence.

A school inspector dismissed for brushing water off a pupil’s head won his unfair dismissal claim against OFSTED.  Mr. Hewston worked as a Social Care Regulatory Inspector and, on the 8th of October 2019, during a school inspection, he brushed water off the head and touched the shoulder of a young boy who had been caught in a rainstorm. The school reported the incident to OFSTED as a case of ‘inappropriate touching’ in an 11-page letter.

Disciplinary proceedings were instituted, and he was summarily dismissed for gross misconduct, despite his hitherto immaculate disciplinary record. Throughout the disciplinary process, Mr. Hewston maintained that his conduct was appropriate, even though he would not have done it again due to the trouble it had caused him. Mr. Hewston brought proceedings against OFSTED for both unfair and wrongful dismissal, both of which were dismissed. However, he successfully appealed at a tribunal, which found that the claimant had been unfairly dismissed, as OFSTED did not have a policy in place prohibiting physical contact with a child, nor any disciplinary rules defining touching as gross misconduct.

Section 94 of the Employment Rights Act (ERA) 1996 gives employees the right not to be unfairly dismissed, and the absence of published guidance or disciplinary rules on physical contact is dispositive. Indeed, the lack of any such guidance would result in the claimant not knowing that what he was doing was “so seriously wrong as to justify dismissal”.

The decision also makes it clear that a person cannot be dismissed because they did not show the ‘right’ reaction and insight during a disciplinary hearing. The fact that Mr. Hewston would never act the same way because of the trouble it caused him, rather than because he admits his action was ‘wrong’, is irrelevant; the salient point being that he would not do it again.

Employers must ensure that they have the right guidance and policies in place if a certain form of conduct is deemed inappropriate in their field; otherwise, any subsequent dismissal could be regarded as unfair. Your employees must be able to know what behaviours are reasonably expected from them.

Kau Media Group (KMG) Ltd. sought to enforce two post-termination employment restriction (PTRs) contained in a contract of employment to restrict Mr. Hart, a former employee, from working for his proposed new employer, MiSmile Media Ltd. (MML).

Mr. Hart had worked for KMG from November 2020 to late 2024 as an Account Director. From 2021, the defendant became Account Director for MML, a longstanding client of KMG. On the 19th of September 2024, Mr. Hart informed Mr. Khokhar of KMG that he had since taken a job at MML despite being offered more favourable terms, having been approached by the CEO of MML. Mr. Khokhar however made it clear that taking such a job was against the terms of Mr. Hart’s contract.

On the 25th of September 2024, Mr. Hart inaccurately told the claimant he had already signed a contract with MML, before proceedings were started on the 13th of December 2024. The High Court however concluded that KMG did not establish that the PTRs were enforceable with respect to confidentiality and refused the application for injunctive relief on the grounds of ‘restraint of trade’.

The onus was on KMG to demonstrate that the PTRs were reasonable, protected its legitimate business interests, and that any restrictions were commensurate with the benefits secured under the contract. Even though the services provided by MML and KMG were overtly identical, making them potential competitors, the work involved did not comprise a core part of KMG’s dental sector business and thus MML was not effectively in direct competition with KMG. Settled case law has established that legitimate interest does not cover “the skill, experience, know-how, and general knowledge" acquired by an employee, in order to rely on this interest, KMG should have demonstrated ‘objective’ knowledge.

Thus, before incorporating or seeking to enforce any PTRs, ensure that any PTR relied upon is reasonable between the parties, protects the company’s legitimate business interests, and does not venture beyond these demarcations, or else the PTR may be rendered void and unenforceable.

A Tribunal has ruled that a deputy security manager was unfairly dismissed, despite performing “no prescribed tasks” while ‘working from home’, many hundreds of miles from his place of work. Mr. Kitaruth travelled from London to Cornwall to visit with his parents for four days, during which the hearing found no evidence that he did any work.

When his line manager, Mr. Stride of OCS Security Ltd., summoned him to a mid-week meeting in the office he learned of Mr. Kitaruth's location leading to his subsequent dismissal for "gross misconduct". However, Mr. Kitaruth won his case for unfair dismissal after the Tribunal found that the company had failed to interview the line manager during their investigation.

Mr. Kitaruth told the Tribunal that he had an informal arrangement in which he verbally agreed with Mr. Stride on the dates that he would ‘work from home’, as August was a quiet month at the conference centre. The Tribunal found that Mr. Kitaruth “genuinely believed he had been given permission” although there was possibly of a misunderstanding arising between himself and his line manager, as evidenced by the message train on WhatsApp. Despite the pretext of 'working from home' there was no evidence that he had performed any tasks and, although he responded to "calendar invites, phone calls, liaising with the officers and emails,” he did not do so in a timely manner.

Judge Tamara Lewis noted that it was “extremely poor practice” for the company to take just six weeks to investigate and dismiss Mr. Kitaruth, and then to take a further seven and a half months to hear and reject his appeal. Moreover, the Judge found that "no reasonable employer would have failed to interview Mr. Stride formally before reaching a decision to dismiss the claimant," and hence, "For this reason, the dismissal was unfair.”

Employers should always publish, adopt, and follow to the letter any formal disciplinary procedures before terminating the employment of any contracted employee.