Reflecting on President Trump’s first 100 days in office
News
Employment in the news | April 2025
29 April 2025
Discrimination-related issues were the hot topic in April. The Supreme Court decision on what the word “sex” means was significant and received much attention. In our view, the equality law call for evidence is likely to be more salient for clients long term, although it’s received less attention.
The Court of Appeal confirmed that an external job applicant can’t bring a whistleblowing claim and the EAT mused on what amounts to a “protected act” in a victimisation case.
Chapter 1
1On the basis of sex
The Supreme Court judgment in For Women Scotland Ltd v The Scottish Ministers focused on whether the term "woman" in the Equality Act 2010 includes trans women with a Gender Recognition Certificate (GRC). For Women Scotland argued that Scottish government guidance that trans women with GRCs were women for the purposes of meeting its public sector gender representation targets was unlawful.
The Court decided that "sex," "man," and "woman" in the Equality Act relate to biological sex, not to someone’s acquired gender. Although the Gender Recognition Act says that someone’s gender becomes their acquired gender “for all purposes” when they obtain a GRC, that’s subject to contrary provisions in other acts. The Equality Act doesn’t define the terms “women” or “sex”, but their meaning has to be predictable, workable and capable of being understood and applied by those under a duty not to discriminate.
A biological definition of sex was the only way to achieve that. Provisions on pregnancy and maternity discrimination, separate and single-sex services, and fair participation in sport, amongst others, could only be applied coherently using a biological definition. Different definitions couldn’t apply to different provisions of the Act.
However, the Court emphasised that trans men and women are still protected against discrimination in their acquired gender. The Equality Act protects against direct discrimination through association or perception, and someone can claim indirect discrimination even if they do not share the protected characteristic of the disadvantaged group. Harassment only has to “relate” to a protected characteristic.
Next steps
- Employers should revisit gender inclusivity policies to ensure that the needs of biological and trans men and women are considered and protected.
- They may also want to emphasise the continuing need for respect and tolerance of all groups within the workplace and remind employees of the right not to be discriminated against because of a protected characteristic, or perceived characteristic.
- Review the recent EHRC interim update on the practical implications of the decision here.
Chapter 2
2Call for Evidence – Equality Law
The government’s call for evidence on various aspects of equality law has a particular focus on enhancing equal pay protection in relation to race and disability. It aims to address persistent pay disparities and improve transparency in pay practices.
The proposals being considered include:
- Extending the equal pay framework to the protected characteristics of race and disability;
- Creating an Equal Pay Regulatory and Enforcement Unit to enhance enforcement mechanisms;
- Measures to prevent employers using outsourcing to avoid equal pay obligations, for example by allowing outsourced workers to compare their pay with in-house employees; and
- Introducing mandatory pay transparency measures, such as publishing salary ranges in job adverts and prohibiting salary history inquiries.
You can read about the call for evidence in more detail here.
Next Steps
- The call for evidence closes on 30 June 2025.
- Employers should respond to the call for evidence to influence government thinking on promoting equality and fair and transparent pay in the workplace.
Chapter 3
3No whistleblowing protection for external job applicants
In Sullivan v Isle of Wight Council the Court of Appeal confirmed that (most) external job applicants can’t bring whistleblowing claims against their prospective employers. Excluding job applicants from protection doesn’t breach human rights principles and extending protection is a matter for legislation, not the courts.
Ms Sullivan unsuccessfully applied for jobs with the Isle of Wight Council. She later complained about the interview process and made allegations about financial irregularities in a charitable trust connected to one of the interviewers. When the Council refused her a right of appeal under its complaints process, she argued that this was a detriment for making a protected disclosure.
Under existing whistleblowing protections, most external candidates cannot bring claims. There is an exception for those applying for work within the NHS. Ms Sullivan asked the Court to interpret the legislation to allow her to proceed with her claim, arguing that preventing her from doing so was incompatible with her human right to freedom of expression and discriminated against her because of her status as an external applicant.
Her claim failed. The Court found that her position was not comparable to that of internal or NHS job applicants and that any difference in treatment was justified. Protection for NHS applicants reflected concerns about patient safety that did not apply to other organisations and Parliament had considered but decided not to change the law for other applicants.
Next steps
- The decision removes the need for potentially onerous investigations into complaints from applicants to avoid a whistleblowing detriment claim, although applicants are protected against other forms of discrimination.
- It isn’t clear whether the government will take legislative action beyond clarifying that disclosures about sexual harassment qualify for whistleblowing protection.
Chapter 4
4Context is king for victimisation complaint
The EAT decision in Kokomane v Boots Management Services Ltd highlights that employees don’t need to allege discrimination expressly to trigger protection against victimisation. Tribunals must assess whether someone has done a protected act in context.
Ms Kokomane was the only full-time non-white employee where she worked. She complained about being treated differently and bullied, specifically in relation to an incident when another employee accused her of shouting. In her grievance hearing she commented that black women and girls were “known to be loud”. The tribunal found that she had not done a protected act because she had not complained about race discrimination in her grievance or at the hearing.
As the EAT observed, allegations of discrimination do not have to be express to be a protected act. All an employee needs to do is complain about something that could be an act of discrimination. It may be clear from the circumstances that an allegation is one of discrimination. What the employee has said, and how the employer would understand it, must be seen in context.
The employee was the only black employee in the workplace and had complained about being treated differently and accused of shouting. She had mentioned that such accusations may be connected with black women in a negative way. It was unclear whether the tribunal had fully considered that context when it concluded that she had not done a protected act.
Next steps
- Do not assume that an employee will not have protection against victimisation if they have not expressly complained about discrimination.
- Tribunals must look carefully at all the circumstances to decide whether an employer would have understood a complaint as one of discrimination.
Authored by Ed Bowyer, Stefan Martin, and Jo Broadbent.
Contacts
London
Articles you may be interested in
View more insights and analysis
