ELA Briefing - November 2025

VOLUME 32 NUMBER 9

BRIEFING November 2025 MARC JONES Marjon Law

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EDITORIAL

CASPAR GLYN KC 2 ELA NEWS Cloisters KATHLEEN BADA Charles Russell Speechlys LLP

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CÉLINE WINHAM and LARA MASSARELLA 6 Irwin Mitchell LLP

THOMAS FULLER 9 Omny Law NICK MARSHALL and KLOE HALLS 11 Linklaters

IN BRIEF

PLATFORM – SHARED PARENTAL LEAVE: WHY THE POLICY FALLS SHORT AND WHAT THE UK CAN LEARN FROM EUROPE MATERNITY LEAVE, SICKNESS ABSENCE AND NOTICE PAY: A LEGAL CONUNDRUM REFLECTIONS ON WORKPLACE INVESTIGATIONS IN 2025

HELENA IFEKA 13 UNINTENTIONAL INDIRECT DISCRIMINATION Cloisters Chambers

DEBORAH CASALE and CATRIONA McGREGOR 16 RETHINKING COMPARATORS IN Irwin Mitchell LLP RACE DISCRIMINATION CLAIMS

SHANE CRAWFORD 19 ‘IN THE COURSE OF EMPLOYMENT’: Five Paper WHAT ARE THE PARAMETERS?

Editor MARC JONES Marjon Law marc@marjonlaw.co.uk Editorial committee KATHLEEN BADA Charles Russell Speechlys LLP CLARE FLETCHER Slaughter and May

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a word from the editor

With the cost of living increasing and likely to increase further with the Budget on 26 November, it is welcome news to see that the Living Wage, the voluntary hourly rate paid by more than 16,000 employers, will increase by nearly 7% for 2025-2026.

The Living Wage outside London will increase from £12.60 to £13.45 per hour, a 6.7% increase, and in London from £13.85 to £14.80 per hour, a 6.9% increase.

‘The Law Society Keeping with the theme of the minimum wage, Gazette has The Law Society Gazette has identified three law identified three law firms that appeared on the ‘named and shamed’ list firms which failed to of 500 companies which failed to pay the minimum pay the minimum wage. The three firms – Addison and Khan Solicitors in wage’ London, OCL Solicitors in Darlington and Ackroyd Legal in London – were fined. Worryingly, both London firms advertise that they advise on employment law.

According to a report in the Independent last month, lawyers and accountants could face higher taxes as Rachel Reeves is expected to announce a charge on workers who use limited liability partnerships (LLPs), as she tries to fill a hole in the public finances estimated at between £30bn and £50bn. According to The Times, the change would only impact LLPs and not general partnerships to avoid hitting GPs. The UK has 355,760 partnerships, according to money.co.uk. As LLPs do not pay employers national insurance contributions of 15% for partners of LLPs because they are treated as self-employed, it would raise an estimated £2bn for the Treasury.

The Daily Mail reported a case involving an autistic employee of Wetherspoons, Brandon Halstead. The kitchen porter was accused of dishonesty after he used his 20% employee discount (saving £19.17) for a meal with seven family members when it was limited to four, contrary to its staff discount policy. Mr Halstead presented a tribunal claim for disability discrimination, as he was unaware that the policy limited discounts to groups of four. Alongside being accused of dishonesty and abusing the discount policy, he was also accused of failing to comply with Weatherspoon’s data protection and confidentiality policy. The entire process left Mr Halstead with significant stress and anxiety, and he was signed off work with stress. The tribunal ruled that Wetherspoons failed to make reasonable adjustments for Mr Halstead’s disability and reacted disproportionately. Judge Murdoch said Weatherspoon’s ‘zero tolerance’ approach put him at a substantial disadvantage compared to non-autistic staff when there was ‘no evidence whatsoever of dishonesty’. The tribunal upheld the complaint of failure to make reasonable adjustments and awarded Ms Halstead compensation for injury to feelings of £25,412.

The Government has launched four consultations on proposed protections under the Employment Rights Bill. They seek views on the implementation of (a) the new right for trade unions to access workplaces; (b) the new duty on employers to inform workers of their right to join a trade union; (c) the enhanced protection from dismissal for pregnant workers and new mothers; and (d) the new ‘day one’ right to bereavement leave.

If you would like an article to be considered by the editorial committee, please can you send it to ELABriefingEditor@elaweb.org.uk by 9 January.

I sign off this month with a quote from US writer Mignon McLaughlin: ‘Philosophy teaches a man that he can’t take it with him; taxes teach him he can’t leave it behind either.’

MARC JONES, Marjon Law

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ela news

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In September, I delivered presentations on the Employment Rights Bill in Birmingham, Norwich, Cardiff, Bristol, Newcastle, Liverpool and Edinburgh.

My tour gave me the opportunity to speak to hundreds of members about their practices, ELA and the tribunal system – and how we could help. In most, but not all regions, I heard of delays in conciliating by Acas; that many claims were ‘the rule of law in not being conciliated at all and certificates were employment justice simply being issued at the six-week mark; and that is locked up behind conciliators were only making contact in the fifth long delays’ week and only selecting low-hanging fruit – those easy-to-conciliate cases. I have raised these issues with Acas. There is a shortage of conciliators and cases still coming in. I am meeting the Chief Executive of Acas with Catrina Smith (Legislative and Policy Chair) and Richard Fox to discuss these issues.

Many regions reported delays and difficulties contacting tribunals. We know of particular problems in London South and Watford, although we are assured that the digitisation of justice should address these issues. The picture across the country was mixed. I have also had a raft of complaints that cases are prepared and then removed from the list causing wasted costs of money and time.

We are engaging with the tribunals and, perhaps more importantly, their paymasters, the Ministry of Justice and the Department for Business and Trade, to raise the issues that we, as professionals, encounter every day while pursuing cases for our clients. ELA speaks with authority and we are trying to move the dial but resources are scarce and, speaking frankly, I cannot see a change for the good coming.

I can see the Employment Rights Bill with its 25-odd new causes of action making things worse. As importantly, anecdotally, I have begun to hear and see claim forms being drafted by artificial intelligence. The revolutionary effect of this technology does not seem to me, at this stage, to be making employment justice simpler and more accessible but more complex as large-language models draft ‘kitchen-sink’ claims.

I raise and keep on raising with those who fund and run the tribunals that delayed justice simply means that in many areas of the country, but not all, that the rule of law in employment justice is locked up behind long delays. It is important, however, to note that, in many areas of the country, it is not the case and particularly with smaller cases involving, for instance, deductions of wages claims, where access to justice can be more timeously provided. I do not want to tar the whole system with one brush but too many members of the association have complained to me about the system on behalf of both claimants and respondents too often for me not to raise and pursue these issues. These are not political. They are fundamental rule of law issues.

Along with the Legislative and Policy Committee, I am fully engaged with making it clear to the Ministry of Justice, the Department for Business and Trade, Acas and to those able to make a difference to employment justice that resources are needed. Introducing a host of new rights with a political fanfare trumpeting a ‘New Deal’ for workers is wholly misleading when enforcement of those rights, on the ground in many parts of the country, are so delayed.

Recent activities • Training Committee webinars included: ‘Litigating Disability Discrimination Claims: Practice, pitfalls and developments’, 1 October; and ‘Breakdowns, Clashes and Irreconcilable Differences: Can we just end this right now’, 7 October.

• International Committee: the 9th ELA/ABA Transatlantic Conference took place on 22 and 23 October in London.

• The Pastoral Committee ran a webinar, ‘Burnout in Law: The warning signs and preventative measures’ on 9 October.

• The regions: in October, there were speed mentoring events in Bristol, training days in Leeds and London, and a social event in Oxford.

Looking ahead • Forthcoming Training Committee webinars include ‘Tricky Termination Payment Tax Issues’ on 18 November. A two-day ‘Introduction to Employment Law’ course will take place in Birmingham on 10 and 11 November. The ELA Annual Lecture will be held in London on 20 November.

• ‘The Employment Appeal Tribunal at 50’ is planned for 5 December.

• In the regions, there is ‘An Introduction to Advocacy for Junior Employment Lawyers’ event in Manchester on December 3 and quiz events in Leeds (25 November) and Milton Keynes (27 November).

CASPAR GLYN KC, Cloisters

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in brief

Cyber attacks are a growing concern for employers October was Cybersecurity Awareness Month. It was an apt time to think about the increasing prevalence of cyber attacks on businesses and their impact on workers.

The Cyber Security Breaches Survey 2025 (the 2025 Breaches Survey), commissioned by the Department for Science, Innovation and Technology and the Home Office, found that 43% of businesses surveyed were ‘employee relations may subjected to a cyber attack or breach in the 12-month be negatively affected period to December 2024. Incidences of cyber attacks by management’s and breaches were highest among large and mediumshoddy handling of a sized businesses (74% and 67%, respectively). shutdown’ Many large employers have this year suffered from the effects of cyber attacks, including Marks & Spencer and the Co-op. On 31 August, the car manufacturer Jaguar Land Rover (JLR) was forced to cease vehicle production following a cyber attack. Operations resumed on a phased basis in October. As well as the estimated 30,000 JLR employees affected by the shutdown, several suppliers to JLR were forced to lay off employees because they lacked sufficient funds to pay wages. Reports estimate that about 100,000 individuals work for businesses in the JLR supply chain. The trade union Unite reported that workers at these suppliers were ‘laid off with reduced or zero pay, with some being advised to sign up for universal credit’. JLR has received a £1.5bn loan guarantee from the Government to ‘help support the supply chain and protect skilled jobs in the West Midlands, Merseyside and throughout the UK’.

Given the potential for a cyber attack to severely disrupt business operations, a prudent employer would consider the possible impact on their workforce should their business fall prey to hackers. A sudden loss of business or the need for an unforeseen shutdown may result in staff being placed on short-time working, laid off or made redundant. Employers who fail to abide by their employment law obligations while seeking to take prompt action may find themselves facing claims for breach of contract, unlawful deductions from wages or unfair dismissal.

Employee relations may be negatively affected by management’s shoddy handling of a shutdown. Clear and timely communications that keep employees updated on the workplace disruption are vital.

According to the 2025 Breaches Survey, additional staff training and communication is the most common preventative measure adopted by businesses following a breach. This approach is particularly important given that the hackers who targeted Marks & Spencer and the Co-op used ‘social engineering’ to target employees and IT help desks. This involves the cybercriminals impersonating employees so they can trick IT support into resetting their credentials, thereby giving them access to the employer’s computer network.

The legal sector is a prime target for cyber attacks. Many law firms are accordingly taking steps to beef up employees’ cybersecurity habits. These include teaching employees how to spot suspicious activity and asking them to abide by strict protocols when handling sensitive client information. Employees are encouraged to verify who they are dealing with if something feels off and to seek advice in the event of uncertainty, even on routine matters. As cyber attacks continue to increase, robust employment procedures will become increasingly important to businesses in maintaining effective cybersecurity.

New CMA guide on anti-competitive behaviour in labour markets The Competition and Markets Authority (CMA) has published a new guide aimed at businesses and warning about anti-competitive behaviour when recruiting and retaining staff. The 18-page guide, ‘Competing for talent’, covers three types of

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anti-competitive behaviour in employment: no-poaching arrangements; wagefixing; and the exchange of competitively sensitive information. The guide notes that even the unilateral disclosure of current staff pay from one business to another could potentially breach competition law.

The CMA warns that businesses found guilty of engaging in anti-competitive activity can be fined up to 10% of their annual worldwide turnover and prevented from bidding for public contracts. The guide contains the example of five sports broadcasters who, in March 2025, were punished with fines totalling more than £4 million. The CMA found that the businesses had unlawfully shared sensitive information about pay with the aim of aligning freelancer pay rates.

The guide concludes with a list of actions businesses can take to avoid breaching competition law. These include training staff involved in hiring on competition law and how it applies in the recruitment context. The guide is available at https://assets. publishing.service.gov.uk/media/68bffbb38c6d992f23edd75c/competing-for-talentguide.pdf.

Employment tribunal penalty enforcement scheme failing to deliver An investigation by the BBC and the Bureau of Investigative Journalism has revealed a lack of bite in the Government’s scheme to enforce unpaid employment tribunal awards. The employment tribunal penalty scheme was established to help workers recover outstanding employment awards. If a tribunal award remains unpaid for at least 42 days from the judgment date, the claimant can register the award with the scheme. The employer is then sent a warning notice giving them 28 days to pay the outstanding award. If that period expires without the award being paid, the employer is sent a notice ordering them to pay a penalty of 50% of the award. Interest is also added at a rate of 8% per annum.

The investigation by the BBC and the Bureau of Investigative Journalism showed that more than 7,000 workers have used the employment tribunal penalty enforcement scheme since its April 2016 launch. However, only one-quarter of users have successfully received award payments through the scheme. Close to £36m of awards registered under the scheme remain unpaid.

The new Fair Work Agency proposed by under the Employment Right Bill will take over enforcement of employment rights. The proposals include the Fair Work Agency having the power to recover enforcement costs from employers against whom action has been taken for non-compliance. However, it is not clear whether it is currently envisaged that the Fair Work Agency might take steps to improve the existing penalty enforcement process.

Occupational health surveys find mental health is main cause of absence and referrals In September 2025, the CIPD published the 24th edition of ‘Health and Wellbeing at Work’, its report on occupational health. The survey showed that average absence levels are now 9.5 days per employee per year (up from 7.8 days in 2023 and 5.8 days in 2022). Mental health remains the leading cause of long-term absence and the second most common cause of short-term absence.

The findings in the CIPD’s report are consistent with those in a recent study by occupational health provider PAM Group. Their survey found that mental health issues are the leading cause of occupational health referrals from employers.

Men were more likely to struggle with depression, while women were more often affected by anxiety. Neurodivergent conditions (such as autism, dyslexia and ADHD) were the third most common reason for referrals.

KATHLEEN BADA, Charles Russell Speechlys LLP

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Platform – Shared Parental Leave: why the policy falls short and what the UK can learn from Europe CÉLINE WINHAM and LARA MASSARELLA, Irwin Mitchell LLP

This article examines the shortcomings of the UK’s Statutory Shared Parental Leave/Pay and Statutory Paternity Leave/Pay arrangements, following the Women and Equalities Committee’s report ‘Equality at Work: Paternity and Shared Parental Leave’ on 10 June 2025. It also looks at more effective European models to inform potential reforms.

In response to the report, the Government launched a review in July 2025 on the reform of the parental leave system, which is expected to last 18 months and aims to explore how to improve women’s career outcomes, and reduce the gender pay gap and the so-called ‘motherhood penalty’.

Statutory Paternity Leave Since its introduction in 2003, Statutory Paternity Leave (SPL) has offered eligible fathers (those employed continuously for 25 weeks before the 15th week prior to childbirth) two weeks of paid leave.

Despite reforms by the UK Government in recent years, allowing leave to be split into separate one-week blocks and the notice period reduced to just 28 days, uptake remains undeniably low – just 31% of eligible fathers take their entitlement, according to a 2019 study by The Independent.

This is largely due to poor statutory pay (£187.18 per week or 90% of earnings, whichever is lower), which is less than half the National Living Wage, forcing up to 90% of fathers to use annual leave instead, according to research by the Fatherhood Institute. The Women and Equalities Committee (WEC) has condemned the UK’s system as ‘one of the worst in the developed world’.

Statutory Shared Parental Leave This was introduced in 2014 under the Children and Families Act 2014 and was meant to foster gender equality by allowing mothers to transfer leave to fathers. This was in response to around a decade of calls for reform to generate more gender equality in the workplace and domestically.

Yet only around 2% of eligible fathers take up Statutory Shared Parental Leave (SShPL), a figure predicted in the 2013 Impact Assessment before the policy was even launched. The key barriers continue to be restrictive eligibility, low pay and a lack of awareness. Both parents must have 26 weeks’ continuous employment before the 15th week prior to childbirth, excluding gig workers and the self-employed. Statutory Maternity Leave (SML), by contrast, is a ‘day one’ right.

Although SShPL allows fathers to take more leave, the requirement for mothers to give up their own leave means it is not practically workable or truly supportive for families.

Fundamental flaws in UK policies affecting fathers/partners’ rights to leave Eligibility The requirement for continuous employment excludes many modern workers, especially those in the gig economy, the self-employed or those with portfolio careers. The Government’s justification, that

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Platform – Shared Parental Leave: why the policy falls short and what the UK can learn from Europe ‘men face stigma for taking leave, especially in working-class environments’

it means ‘new employers are confident to take on new employees’ has been criticised as legitimising discrimination.

If all parental leave and pay entitlements were classified as ‘day one’ rights, it would allow more parents to become eligible to utilise the entitlements more equally and, in turn, likely decrease gender disparity. It would also likely have the knock-on effect of alleviating unintentional bias in the hiring process of women aged 18-36 (who might be considered as a typical employee of child-bearing age) and minimise the gender pay gap over time.

Affordability Statutory pay for SPL and SShPL is capped at £187.18 per week, well below the National Living Wage, as noted by the WEC’s report. This is a stark contrast to Statutory Maternity Pay (SMP) which is more generous: six weeks at 90% of earnings, then the capped rate for 33 weeks. With men often being the higher earners, families are forced to choose SML for financial reasons, perpetuating maternal dependency and discouraging paternal involvement. The cost-of-living crisis has made SShPL even less viable, with inflation and rising household costs squeezing families further. Calls for income-related SPL pay have been resisted by the Government, citing complexity and administrative burden on employers.

Currently, the SShPL legislation only benefits the circa 25% of households where women are the main earners. In order to increase the uptake of SShPL, first the Government would need to reform statutory pay.

Without increasing SShPP, reserved leave for fathers/partners could exacerbate financial strain and the take-up is likely to continue to remain low.

Gendered stereotypes and stigma The WEC report identified that the low uptake of SShPL is also driven by cultural attitudes. Men face stigma for taking leave, especially in working-class environments, while women continue to be expected to shoulder the bulk of childcare and ‘invisible labour’ at home, together with ‘office housework’ or ‘non-promotable tasks’ at work. This reinforces power dynamics, gender disparity, women’s career stagnation and burnout.

A modernised approach to parental leave would require a societal rethink of its approach to gender roles in the workplace.

Government review and response The Employment Rights Bill aims to modernise workers’ rights. It makes SPL a day one right (but not SPP) and lets fathers take leave before or after SShPL. According to the Government, this change is expected to benefit 32,000 fathers or partners and 1.5 million parents who currently miss out due to service requirements.

Proposed changes as part of the Government’s review also include extending SPL from two to six weeks, raising SPP to 90% of earnings (capped at the median income) and requiring large employers to publish their policies, improving transparency.

The Government’s response to the WEC report acknowledged that more support is needed for working families and committed to examining a shift in societal norms around caregiving and gender roles.

The review will also assess whether the current system meets the needs of self-employed parents, who generally lack access to family-related leave entitlements apart from Maternity Allowance. The Government will consider whether similar support should be extended to fathers and kinship carers (those raising children who are not their own).

While these reforms are steps in the right direction, progress since 2003 has been slow. The changes which shift responsibility onto employers are likely to be resisted and it remains to be seen whether they will go far enough to support fathers/partners or ease the burden on mothers.

European inspiration: Sweden’s model Sweden’s ‘parental insurance’ offers 480 days of leave, with 90 days reserved for each parent and the rest split as they choose. Pay is up to 80% of salary for the first 390 days, capped at a generous level. The ‘use it or lose it’ approach drives high uptake among fathers and supports genuine equality.

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Platform – Shared Parental Leave: why the policy falls short and what the UK can learn from Europe ‘enhanced shared parental leave and paternity leave entitlements would shift the culture and pave the way for meaningful reform’

If the UK were to implement a policy similar to that of Sweden, this approach would undoubtedly encourage both parents to actively engage with leave entitlements.

The role of employers Some private sector employers are already ahead of the curve, and utilising private sector initiatives offering a promising avenue for reform. Aviva, Vodafone and Procter & Gamble offer enhanced SShPL schemes, with Aviva providing 26 weeks’ full pay and achieving 80% uptake among male employees. These policies challenge gender norms and promote workplace equality, though we recognise that smaller organisations may struggle to match them.

Encouraging private sector reform may spark wider cultural change and motivate Government action, especially if SMEs receive incentives to offer better SShPL schemes.

Conclusion The UK’s SShPL system had good intentions but has fallen short. Gender roles, affordability and job status remain major barriers, which have been exacerbated by the pandemic and the cost-of-living crisis.

Any changes resulting from the Government’s review are unlikely to be implemented before 2027, but the Bill will deliver some limited wins by expanding access to unpaid leave and removing some key restrictions.

Meaningful reform depends on both policy change and a cultural shift in attitudes towards gender roles.

Extending SPL and improving pay are steps forward, but we consider that true equality requires equal eligibility and pay for fathers and partners. Inspired by Sweden and driven by forward-thinking employers, enhanced shared parental leave and paternity leave entitlements would shift the culture and pave the way for meaningful reform.

Céline Winham is a solicitor and Lara Massarella is a paralegal in the Employment - Senior Executive and Professional Discipline team at Irwin Mitchell LLP. The views of the authors are not necessarily the views of ELA or the ELA Briefing Editorial Committee.

KEY: SShPL/SShPP Statutory Shared Parental Leave/ Statutory Shared Parental Pay SPL/SPP Statutory Paternity Leave/Statutory Paternity Pay SML/SMP Statutory Maternity Leave/Statutory Maternity Pay

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WEC Women and Equalities Committee WEC Report ‘Equality at Work: Paternity and Shared Parental Leave (4 September 2025)

Maternity leave, sickness absence and notice pay: a legal conundrum THOMAS FULLER, Omny Law

Is an employee on maternity leave or long-term sickness absence entitled to notice pay if they are dismissed? In most cases, the answer is yes, but due to a rarely used provision of s.87(4) of the Employment Rights Act 1996, which I refer to as a ‘quirk’, it is not always as clear-cut an answer as that.

The legal framework While on maternity leave, an employee is entitled to benefit from their terms and conditions of employment as if they were not absent, except for those terms of employment relating to remuneration, ie in relation to wages or salary (regs 9(1), (2) and (3) of the Maternity and Parental Leave Etc. Regulations 1999 (MAPLR 1999)).

That said, where an employee on maternity leave has been given, or gives, notice to terminate their contract, they will be entitled to their full remuneration for the duration of their notice period (this is also applicable to employees on long-term sickness absence who give or have been given notice to terminate their contract), unless they are caught by a quirk in the Employment Rights Act 1996 (ERA).

For employees who have no written employment contract (although written contracts should be issued to all workers from day one of their employment – s.1 ERA 1996), they may be able to rest assured that they would still be entitled to receive their full pay during their notice period if reasonable notice would be the same as the statutory minimum period of notice. But what about employees who do have written employment contracts which set out their notice requirements, or where reasonable notice is greater than the statutory minimum notice period?

Buried within the ERA, legislation provides that where the notice to be given by the employer to terminate an employee’s contract is more than one week over the statutory minimum notice, an employee on maternity leave will not be entitled to notice pay at their full rate (s.87(4) ERA 1996). An employer who is contractually required to give an employee the statutory minimum notice cannot take advantage of this provision by giving more notice than the contract requires (Budd at para 15). The effect is that employees on maternity leave with enhanced contractual notice periods could be at risk of losing out on their full notice pay if they are dismissed with notice, and may receive either the balance of their statutory maternity pay or, at worst, nothing at all, where their average earnings each week during unpaid parts of their maternity leave are nil (s.88(1) ERA 1996).

But the curiosities of this provision do not end there, because this quirk in the ERA does not just potentially affect those employees who are within their unpaid period of maternity leave, but it can also apply to anyone who is on long-term sickness absence.

Employees who have been off work on a long-term basis may, at some point during their absence, exhaust any entitlement they may have to any statutory or contractual sick pay. If the employee is subsequently dismissed by their employer on the grounds of ill health, they could well fall victim to this quirk, and like those on maternity leave, they too could be left with no wages at all during their notice periods.

While this quirk applies to situations where notice is served on an employee either on maternity leave or longterm sick, a related issue is whether, in a situation where this provision of the ERA is engaged to someone either on maternity leave or long-term sickness absence, would an employer be able to effectively withhold notice pay to employees by electing to serve notice by way of a payment in lieu of notice (PILON)?

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Maternity leave, sickness absence and notice pay: a legal conundrum ‘pay the employee at their full rate of pay, whether it is being given as a PILON or as part of a period of notice, to avoid a potential claim’

The answer to this question, in my view, possibly lies in a decision of the House of Lords in 1992 (Delaney), where it was held that a PILON was not to be considered ‘wages’. The rationale for this decision was that wages were sums paid to employees for services rendered, whereas a PILON was not paid in respect of any work done by the employee, or because of any obligation on the part of the employee to offer their services.

However, this case did not concern either this quirk in the ERA or the legislation around maternity leave and pay.

It therefore raises an interesting question: if the contractual notice of the employee is more than a week above the statutory minimum (and therefore disapplies the requirement to pay full notice pay), the employee has exhausted their maternity pay or sick pay (and so their weekly pay would be nil), could an employer interpret this as meaning that an employer is able to say it is making a PILON at, effectively, a nil rate to terminate the employee’s employment? For those employees specifically on maternity leave, the law makes it clear that the terms and conditions of the employee’s employment around pay are suspended during maternity leave, Practical guidance Where the contractual notice is greater than the statutory minimum notice by one week this will engage s.87(4) ERA. An example would be where the contractual notice period is two months, and the statutory notice period is eight weeks. In this example, there is a greater contractual notice period than the statutory minimum notice.

As creative and attractive as the argument above may seem to employers, in circumstances where this quirk of the ERA is engaged and an employer is considering making a PILON, in my view, it seems doubtful that an employment tribunal would find that a PILON with a nil balance would align with what is trite law that a PILON is not classified as wages.

If that is the case, then in circumstances where an employee on maternity leave or long-term sickness absence is dismissed with a PILON, employers should avoid treating a PILON as ‘pay’ that they can withhold from the employee just because this quirk is engaged.

Failing to pay a PILON to employees in either of these scenarios could attract a claim for breach of contract or unauthorised deductions from wages for the balance of their notice pay.

Where an employee is on maternity leave or long-term sickness absence, and the employer expects the employee to serve out their notice period in full, employers should, in my opinion, still tread cautiously in this area, as it must be remembered that the contractual notice has to be greater than the statutory minimum notice by at least one week to engage s.87(4) ERA, not just that the contractual notice be greater than the statutory minimum notice.

An example would be where the contractual notice period is two months, and the statutory notice period is eight weeks. In this example, even though there is a greater contractual notice period than the statutory minimum notice, it is not by more than one week, and therefore this quirk would not apply despite the greater contractual notice period.

In reality, the best course of action for employers, in my view, would be to pay the employee at their full rate of pay, whether it is being given as a PILON or as part of a period of notice, to avoid a potential claim.

The views of the author are not necessarily the views of ELA or the ELA Briefing Editorial Committee.

KEY:

MAPLR 1999 Maternity and Parental Leave etc.

Regulations 1999 (SI 1999/3312) Budd Budd v Scotts Co (UK) Ltd UKEAT/823/01

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PILON Payment in lieu of notice Delaney Delaney v Staples [1992] IRLR 131

Reflections on workplace investigations in 2025 NICK MARSHALL and KLOE HALLS, Linklaters

In times gone by, a serious workplace investigation reaching the board was a rare event. Today, it is an increasingly routine and high-stakes feature of corporate life. Not only has the threshold for what is considered acceptable workplace behaviour evolved, but there is a growing expectation for a more sophisticated handling of investigations.

The speak-up evolution An increasing number of workplace investigations are initiated, often anonymously, through whistleblowing channels. This has been fuelled by a subtle but positive shift in how whistleblowers are perceived in society, moving away from viewing them as a ‘problem’ to recognising their value in exposing wrongdoing and supporting good governance. In fact, according to a recent survey conducted by whistleblowing charity Protect (‘Attitudes to Whistleblowing’, 24 June 2025), one third of respondents indicated that their own attitudes toward whistleblowing had become somewhat or significantly more positive over the course of their working lives.

The EU Whistleblowing Directive, which prescribes how employers should operate whistleblowing procedures and deal with whistleblowers, has also undoubtedly shaped market practice for whistleblowing investigations in the UK. While the UK was not required to implement the Directive, many organisations are nevertheless aligning their practices with its standards in recognition of the benefits that flow from implementing solid internal reporting channels and increasing transparency around how concerns are handled, and also to ensure a more consistent global approach to responding to whistleblowing concerns.

Regulators are also favouring a more whistleblower-friendly approach. For example, the Financial Conduct Authority has increased efforts over the last few years to enhance transparency in its communications with whistleblowers regarding the progress and outcomes of investigations. It now takes an active interest in the culture and processes around whistleblowing within regulated firms, expecting them to foster psychological safety so that individuals feel able to speak up.

This convergence of positive cultural changes, clearer policies and frameworks and increased regulatory focus has empowered more individuals to voice their concerns. Consequently, employers are not just facing a higher volume of whistleblowing investigations, but are also under greater pressure to handle the investigations with the seriousness and transparency that this new landscape demands.

A new benchmark for acceptable behaviour The standard for what constitutes acceptable workplace conduct has shifted in recent years. This recalibration has been driven by a combination of factors, including the power of social movements, generational changes and changing stakeholder expectations.

Behaviours once dismissed as personality quirks or variations in management styles may now be considered by employers as ‘red flags’ for bullying and indicators of toxic cultures, warranting formal investigation.

This has also resulted in a change not only in the types of behaviours being investigated, but in who is being investigated. It is now increasingly common for board members, including chairs, to come under the

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Reflections on workplace investigations in 2025 ‘regardless of how low-profile a matter may appear, an investigation can quickly spiral and attract public interest’

spotlight for their behaviour, with investigations often triggered by anonymous letters, through whistleblowing reporting channels, as part of grievances or when historical conduct comes to light. Allegations can be hugely damaging, impacting not only the reputations of the senior individuals involved but also wider stakeholder confidence in the business.

Compounding this risk for employers is the fact that such investigations are rarely clear-cut and are often highly complex. They typically involve an assessment of nuanced patterns of behaviour with anecdotal evidence and hearsay, rather than isolated incidents of overt misconduct with incontrovertible evidence.

The key for an investigator is therefore to ensure that, whichever side of the line they deem the behaviour to fall, their decision-making process is robust, fair and can withstand scrutiny.

The evolving role of boards As complaints reach the highest levels of an organisation, so too does the responsibility for handling them.

Board members, particularly non-executive directors (NEDs), are increasingly being appointed to act as investigators and decision-makers in disciplinaries, grievances or whistleblowing investigations, especially where allegations involve senior management. This marks a significant departure from past practice when such issues were usually handled by HR or line management (or, in some cases, not handled at all).

This shift, driven by a rise in the number of complaints and an expectation of independent oversight of investigations, places NEDs at the centre of complex legal, emotional and ethical challenges. NEDs who have the skills and willingness to take on an investigation role are likely to see their services in increasing demand.

However, this carries inherent risks. NEDs must remain impartial to head off any challenges to the credibility or fairness of the process. A board member who has a close working relationship with the subject of the investigation, or who may later be called on as a witness, could jeopardise the integrity of the investigation and undermine any trust in the process.

Although NEDs remain subject to their usual director’s duties, it is often inappropriate to share details of their investigations with other board members. If the issues come before their boards for subsequent discussions or decision-making, NEDs will have to consider whether they should recuse themselves or declare their involvement.

As always, it is important to consider at the outset whether the proposed investigator or decision-maker is appropriate, and what challenges to impartiality might be made against that investigator.

A new era of scrutiny Boards and senior leadership teams are increasingly recognising that, regardless of how low-profile a matter may appear, an investigation can quickly spiral and attract public interest. This is often fuelled by social media or leaks to the wider workforce or press. As a result, contingency planning for reputational fallout has become an essential feature of managing workplace investigations today. It is not uncommon for internal or external PR advisors to be briefed at an early stage so that an organisation can put in place reactive media strategies should sensitive information become public and minimise negative consequences.

This heightened risk of scrutiny reflects a broader shift in stakeholder expectations regarding transparency and accountability. Whereas in the past, employees who raised concerns might have been exited quietly, for many organisations the risk of not investigating issues – whether historic or current – and the potential criticism from the press, public and regulators for not having done so is too great.

Combined with greater regulatory and societal scrutiny of workplace (mis-)behaviour and employers’ responses to it (as seen with the current debate on the use of non-disclosure agreements), organisations are now more motivated to address issues head-on, identify root causes and take decisive action. They are also increasingly aware that how they manage investigations – both the process and the messaging around it – can have a lasting impact on their culture and their ability to attract and retain talent.

Success in this area is therefore measured not by an absence of issues, but by the presence of robust and fair processes capable of resolving such issues under the brightest of spotlights.

12 BRIEFING Vol. 32 No. 9

Unintentional indirect discrimination HELENA IFEKA, Cloisters Chambers

The Briefing runs the rule over unintentional indirect discrimination, analysing the limited number of authorities and offering advice to practitioners.

Indirect discrimination Indirect discrimination under s.19 of the Equality Act 2010 (EqA 2010), in the context of work, is when an employer applies a provision, criterion or practice (PCP) which has a disparate impact on those with a particular protected characteristic, and is not a proportionate means of achieving a legitimate aim.

Take this example: in the aftermath of the pandemic, when working restrictions are beginning to ease, an engineering company hires a new female engineer. Once a week she works from site for a few hours. The rest of the week she works from home. This arrangement enables her to manage school drop-off and pickups. Her male director perceives her performance to be weak. He tries to ‘help’ her improve but to no avail.

Eventually, to improve her performance, he insists that she starts working from site five days a week, like all the other engineers are already doing. The criterion that she works from site five days a week is applied to all engineers at her level, but it places her, as the main carer for her young child, at a particular disadvantage compared to her male colleagues, and cannot be objectively justified.

What is unintentional indirect discrimination?

Unintentional indirect discrimination is a finding that the employer did not apply a PCP ‘with the intention of discriminating against the complainant’. The relevant provisions are ss.124(4)-(5) EqA 2010.

Legal principles There are a limited number of authorities on unintentional indirect discrimination. Two decisions by Mummery LJ – Hussain in the EAT and Chaudhary in the Court of Appeal – concerned s.57(3) of the Race Relations Act 1976. More recent authorities on the EqA 2010 include Wisbey and Bessong (albeit the latter is not directly on topic).

Previously, the burden was on the employer ‘to prove’ that it did not apply the PCP with the intention of discriminating. While this is no longer the express wording of s.124 EqA 2010, if the employer wishes to take advantage of s.124(5), it must raise the point and adduce evidence from which the tribunal can make a finding of fact that it is ‘satisfied’ that the PCP was not applied with the intention of discriminating. An employer who later appeals a judgment on the basis that the tribunal did not consider the question of intention of its own initiative may face short shrift (see Jones at para 11 in which Mr Recorder Langstaff QC (as he then was) politely rejected such an argument brought under s.65(1) of the Sex Discrimination Act 1975).

‘Intention’ is a state of mind. There is a two-stage test to determine the ‘subjective intention of the discriminator’: intention is made out if, when applying the PCP: (i) the employer wants to bring about the state of affairs which constitutes the prohibited result; and (ii) knows that the prohibited result will follow from his acts.

While the meaning of ‘intention’ is a question of law, the question of whether the employer intended to discriminate is a matter of fact, which is answered, on the balance of probabilities, by direct evidence or by inference from all the circumstances (Hussain at 299(5)-(7) per Mummery J; Orphanos at 775D per Lord Fraser).

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Unintentional indirect discrimination ‘while the meaning of “intention” is a question of law, the question of whether the employer intended to discriminate is a matter of fact’

In Chaudhary, Mummery LJ developed his thinking on the test further (albeit his remarks were obiter). In respect of the first limb, the employer must ‘positively’ wish the PCP to have the disparate effect. In respect of the second limb, constructive knowledge of the discriminatory consequences is unlikely to be sufficient: actual knowledge, conscious realisation, is required (Chaudhary at para 224).

In practice, therefore, to be satisfied that a PCP was not applied with the intention of discriminating, the tribunal must find that the discriminator knew or realised that the PCP would have a disparate impact on the complainant but did not positively want to bring about that outcome.

Returning to the example above: the tribunal may find that the male director knew that requiring the woman to work on site five days a week could be difficult for her to comply with, given she was the main carer for her child, but that he did not positively want to make it difficult for her to comply with it. In these circumstances, the tribunal may find that the employer applied a PCP of requiring engineers to work on site five days a week, which was not objectively justifiable, but that it did so without the requisite state of mind. The discrimination was unintentional.

What is the significance of a finding of unintentional indirect discrimination?

First, and most simply, a finding of unintentional indirect discrimination alters the order in which the tribunal must approach remedy. Secondly, a finding of unintentional indirect discrimination may alter the remedies ordered, including in respect to quantum.

Dealing first with the order: once the tribunal has found that an employer has indirectly discriminated against a complainant, there are two paths towards remedy, each beginning with the same question: is the tribunal satisfied that the PCP was not applied with the intention of discriminating against the complainant?

If the tribunal concludes the PCP was applied with the intention of discriminating against the complainant, it will go on to consider the usual three remedies of a declaration, compensation or a recommendation (s.124(2) EqA 2010). If, however, the tribunal concludes the PCP was not applied with the intention of discriminating against the complainant, it must approach remedy in a prescribed order: it must first consider whether to order a declaration or recommendation before it goes on to consider whether to order compensation (s.124(5) EqA 2010; Wisbey at para 39).

On the face of it, this may not appear significant. The tribunal retains its discretion to order all three remedies (Wisbey at [40]). However, a finding of unintentional indirect discrimination has the potential to reduce the amount of financial compensation ordered and limit reputational damage.

In respect of compensation, a finding of unintentional indirect discrimination does not displace the principle that the compensation awarded should place the complainant in the position that they would have been in, but for the discrimination. If the complainant has suffered financial losses flowing directly from the discrimination, such as lost earnings, the tribunal would expect to award appropriate compensation.

Nonetheless, there are two ways in which such a finding may be used to limit quantum.

The first way is in respect of injury to feelings. If it possible to argue that compensation for intentional indirect discrimination should be less than that awarded for harassment, it is certainly open to counsel to argue that compensation for unintentional indirect discrimination should be less than that awarded for intentional indirect discrimination (see Bessong at para 32(b)). The tribunal can be invited to award a sum which compensates fully without punishing the employer.

Secondly, it may be possible to reduce the award of interest. Given the long passage of time between a claim being presented and determined in some regions such as Watford and South London, interest is often a sizeable sum in awards. Interest on awards of compensation in discrimination claims is discretionary (pursuant to s.124(2)(b) EqA 2010 and reg 2(1)(a) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803)). Additionally, interest may be calculated on a different basis and for a different period if the tribunal considers that serious injustice would otherwise be caused (reg 6(3)). Depending on the facts of the case, it may be possible to invite the tribunal to award a lower and less penal rate of interest, and for a shorter period.

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Unintentional indirect discrimination ‘if, in your opinion, it may be possible to obtain a finding of unintentional indirect discrimination, then plead it, as simply as possible’

In respect of reputation, it is a much more palatable outcome for an employer to receive a judgment which finds that although the employer discriminated, it did not intend to do so. This will be so whether the employer is a small business with two dozen employees or a multi-national with 20,000 employees. In its press release, the employer can highlight the finding that it did not intend to discriminate and can emphasise that ‘lessons have already been learned’. The internal consequences for those who applied the PCP may also more moderate.

Practical considerations When faced with an indirect discrimination claim which appears to have legs, ask whether it may be possible to persuade the tribunal to find that the PCP was not applied with the intention of discriminating. You may be able to form a provisional view early on or after reviewing disclosure and proofing your witnesses. Are the witnesses honest and sincere – or unsympathetic or unreliable? Does the key witness accept that she or he applied the PCP? If so, did they understand the effect the PCP would have on the complainant? Did they positively want to bring about that effect? And, is their evidence supported by contemporaneous documents or undermined by it? Remain alive, of course, to the possibility that a badly pleaded PCP may be improved in case management hearings.

If, in your opinion, it may be possible to obtain a finding of unintentional indirect discrimination, then plead it, as simply as possible, in the remedy section of your ‘grounds of resistance’ and, of course, make sure it is addressed in the relevant witness statement.

KEY:

PCP Provision, criterion or practice EqA 2010 Equality Act 2010 Hussain JH Walker v Hussain [1996] ICR 291 Chaudhary British Medical Assoc v Chaudhary [2007] CLY 139

Bessong Bessong v Pennine Care NHS Foundation Trust [2020] ICR 849 Jones Whitbread Walker Ltd v Jones EAT/1084/99 Orphanos Orphanos v Queen Mary College [1985] AC 761

Wisbey Wisbey v Commissioner of the City of London Police [2021] ICR 1465

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Rethinking comparators in race discrimination claims DEBORAH CASALE and CATRIONA McGREGOR, Irwin Mitchell LLP

The recent Court of Appeal decision in Parmar offers helpful clarification on the use of comparators in direct race discrimination claims under the Equality Act 2010. For employment solicitors acting for employees, this judgment offers practical guidance on how to build a strong evidential case, manage the burden of proof and address the impact of unconscious bias in workplace investigations.

The law on direct race discrimination: s.13 Direct discrimination occurs when a person is treated less favourably than another person because of a protected characteristic (in this case, race). Direct discrimination is best understood through comparative treatment. For an employee to show that direct discrimination has occurred, there must be a comparison between the treatment of the employee and a comparator. The correct comparator is someone whose circumstances are materially the same as the employee, except for the protected characteristic, such as race.

There are two types of comparators that may be used: • statutory comparators: these can be an individual (either an actual person or a hypothetical one) whose circumstances are the same as, or not materially different from, the claimants, except that they do not possess the protected characteristic in question; and • evidential comparators: these are used where there is a comparator whose circumstances may differ materially from the claimant but whose treatment can still provide evidence to support an inference of discrimination.

The protected characteristic does not need to be the only basis for the employer’s actions. It is enough if the protected characteristic was ‘an important factor’ or ‘had a significant influence on the outcome’. With the exception of direct age discrimination, an employer is unable to argue that direct discrimination is justified.

Once an employer has treated a worker less favourably because of a protected characteristic, there cannot be a good reason for doing so.

When an employee brings a direct discrimination claim, they must first show to the tribunal that there is a prima facie case of discrimination. This is a two-stage process. At the first stage, the claimant must present facts from which the tribunal could decide, in the absence of any other explanation, that the respondent contravened the Equality Act 2010 (EqA 2010). If this is satisfied, the burden of proof shifts to the respondent at the second stage to show that they did not contravene the provision in question and thus, the treatment was not because of the employee’s race but for a different, lawful reason.

Background to the Court of Appeal decision Mrs Parmar, a British National of Indian origin, was head of service for one of Leicester City Council’s adult social care divisions. There were various issues and conflicts between Mrs Parmar’s team and another service area,

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Rethinking comparators in race discrimination claims ‘the Court of Appeal emphasised that identifying a comparator is a matter of fact and degree for the tribunal – it is not necessary to list every similarity and difference in detail’

Contact and Response (C&R), which culminated in a series of complaints made by several employees. One of the incidents involved a controversial decision by a fellow head of service to reallocate work to Mrs Parmar’s team, despite not having the authority to make such a decision. This prompted numerous complaints by employees, including Mrs Parmar. However, the relocation of work was later approved by the director of adult social care and community safety, Ms Lake. Mrs Parmar raised concerns about the tone of communication by the fellow head of service in a supervision meeting with Ms Lake and later accused her of unconscious bias against ethnic minority managers.

A few years later, following further internal conflict, Mrs Parmar was temporarily removed from her role and subjected to a disciplinary investigation. However, she received little information about the allegations against her. Despite attending multiple investigation meetings, during which Mrs Parmar repeatedly stated she did not understand what she was being accused of, another director ultimately concluded that there was no case to answer and the disciplinary process was discontinued.

Mrs Parmar brought a claim in the employment tribunal for direct race discrimination, arguing that ethnic minority managers were disproportionately subjected to disciplinary action compared with white colleagues.

She alleged that serious concerns raised regarding the conduct of white managers were not investigated. She also argued that Ms Lake failed to investigate safeguarding failures by two white heads of service, and they were not, and would not have been, treated in the same way as she was. She argued that the disparity made the disciplinary process discriminatory.

The tribunal found that the disciplinary investigation and Mrs Parmar’s suspension amounted to less favourable treatment and Mrs Parmar had proven facts from which an inference of discrimination could be drawn. This shifted the burden to the council to provide a credible, non-discriminatory explanation; however, they failed to do so. The tribunal was satisfied that, in the same or similar circumstances, Ms Lake would not have initiated a disciplinary investigation or suspended a white or non-Asian head of service. It found no substantive basis for the investigation, nor any evidence that senior managers routinely took such action.

Given the lack of identifiable misconduct, Ms Lake must have known that the allegations were insufficient to justify disciplinary proceedings. As a result, the tribunal concluded that Mrs Parmar was treated less favourably because of her race and her claim for direct race discrimination succeeded.

The Court of Appeal’s decision The council appealed the decision to the EAT, but its appeal failed. The council then appealed to the Court of Appeal, arguing that the tribunal had treated the comparators as statutory comparators and failed to properly consider the extent to which their circumstances differed from those of Mrs Parmar.

The Court of Appeal clarified that Mrs Parmar’s comparators were two white heads of service who, despite being involved in safeguarding failures, were treated more favourably. She also relied on broader patterns of treatment within Ms Lake’s division. The Court of Appeal confirmed that the tribunal had correctly treated those individuals as evidential comparators, not statutory ones, and was entitled to find that their circumstances were sufficiently similar to support an inference of discrimination.

The Court of Appeal emphasised that identifying a comparator is a matter of fact and degree for the tribunal. It is not necessary for the tribunal to list every similarity and difference in detail. Instead, a general factual description of each individual is sufficient to assess whether the circumstances are comparable.

The tribunal also drew adverse inferences from the council’s failure to disclose key documents, including interview recordings and investigation notes. While the council argued that this created an automatic presumption of discrimination, the Court of Appeal found no error because the tribunal had simply taken the lack of disclosure into account, as it was entitled to.

Furthermore, the council claimed the tribunal wrongly assessed whether it agreed with the council’s reasoning. The Court of Appeal rejected this, noting the tribunal had evaluated the credibility of the council’s explanation and found it lacking.

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Rethinking comparators in race discrimination claims ‘Parmar reframes the comparator analysis as a flexible evidential tool rather than a rigid legal construct’ Finally, the council argued that the tribunal failed to consider whether all investigation meetings amounted to less favourable treatment. The Court of Appeal dismissed this argument, finding that the entire process, including the involvement of a second director formed part of a baseless investigation.

The appeal was therefore dismissed.

Key takeaways for solicitors acting for employees For employment advisers acting on behalf of employees, this case offers key lessons to keep in mind when advising clients on potential discrimination claims.

1. Consider whether there are evidential comparators The Court of Appeal confirmed that tribunals may rely on evidential comparators, such as individuals whose circumstances are not identical but are sufficiently similar to support an inference of discrimination. When advising employees, it is important to ask targeted questions and encourage them to consider whether they can identify colleagues who were treated differently in comparable situations, even if their roles or seniority vary. This helps build a broader evidential base to strengthen a discrimination claim.

2. Burden of proof considerations Once a claimant establishes facts from which discrimination could be inferred, the burden shifts to the employer to provide a non-discriminatory explanation, which the council failed to do in Parmar. It is important to build a strong prima facie case using patterns of treatment, procedural inconsistencies and internal communications. The Court of Appeal emphasised the need for consistency in how disciplinary investigations are initiated and conducted. Inconsistencies can be powerful indicators of discriminatory treatment. These can trigger the burden shift and expose weaknesses in the employer’s defence.

3. Unconscious bias may be actionable The tribunal accepted that unconscious bias may have influenced the manager’s decisions. This reinforces the importance of scrutinising managerial behaviour and decision-making processes. You should consider whether unconscious bias may have influenced the employee’s treatment to such an extent that a tribunal could find it amounts to actionable discrimination. Reviewing training records, diversity policies and the decision-makers’ history can help identify patterns or a workplace culture that reflects bias even if it is not overt or intentional.

4 Procedural fairness is central The lack of clarity around allegations and missing documentation (for example, meeting notes and interview recordings) were pivotal in the tribunal’s decision. When acting for an employee, it is important to highlight procedural failings as part of the less favourable treatment. Tribunals may draw adverse inferences from missing or incomplete evidence.

Conclusion Parmar reframes the comparator analysis as a flexible evidential tool rather than a rigid legal construct. For solicitors acting on behalf of employees, it highlights the value of adopting broader evidential strategies and reinforces the importance of procedural fairness and transparency throughout internal processes.

Deborah Casale and Catriona McGregor are in the Employment – Senior Executive and Professional Discipline team, Irwin Mitchell LLP. KEY:

Parmar Leicester City Council v Parmar [2025] EWCA Civ 952

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EqA 2010

Equality Act 2010

‘In the course of employment’: what are the parameters?

SHANE CRAWFORD, Five Paper

Where harassment is committed by a fellow worker, a key battleground at final hearings is whether the act of alleged harassment occurred in the course of the harasser’s employment. What actions fall within the ambit of ‘in the course of employment’ is often factsensitive but knowing the key questions that should be addressed in each case and how particular scenarios are likely to be interpreted can provide a useful steer.

Statutory provision Section 109 of the Equality Act 2010 (EqA 2010): ‘(1) Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer …

(3) It does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.

(4) In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A— (a) from doing that thing, or (b) from doing anything of that description.’

Construed in the context of anti-discrimination legislation An act being done in the course of employment should be construed in the context that anti-discrimination legislation is given a broad interpretation and that it would be inconsistent with such legislation if ‘the concept of an act being done in the course of employment were to be construed in any sense more limited than the natural meaning of those everyday words would allow’ (Jones).

Where did the incident occur?

The fact that the impugned act occurred at work or in work time still does not of itself meet the test. A tribunal is required to balance the factors for and against the argument that the act occurred in the course of the putative discriminator’s employment and should not ask simply whether the conduct was related to an employment relationship (Campbell). A tribunal will be required to act as an industrial jury and weigh up whether the interaction forming the basis of the claim falls within the ordinary, everyday meaning of the term ‘during the course of employment’.

The alternative scenario, where the ‘thing’ was done outside of work, the employment tribunal should consider whether there is nevertheless a sufficient ‘nexus or connection with work’ such that it is viewed as in the course of the employment (Forbes). The tribunal is to consider the evidence fortifying the existence of a nexus and decide whether it renders the circumstances in which the impugned act occurred an ‘extension of work and the workplace’ (Stubbs).

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Biting the bad apples: the FCA’s new rules on non-financial misconduct ‘the fact that the impugned act occurred at work or in work time still does not of itself meet the test’

Whether the ‘thing’ is done with the employer’s or principal’s knowledge or approval ‘does not matter’ (s.109(3) EqA 2010). However, the ‘thing’ refers to the conduct of the harasser, and the knowledge or approval of that conduct. It does not mean that knowledge or approval of the event after work which is organised by the employer who knows and approves of it, at which the sexual harassment occurs, is irrelevant or does not matter.

Application of these tests Although often fact-sensitive, the application of the test and subsequent scrutiny on appeal provides some flesh to the bones of the test. In the recent case of Campbell, the claimant was a full-time branch secretary of Unison. The second respondent had formerly been a union member but decided he wished to leave. In spite of communicating his wish to leave, his membership subscriptions continued to be deducted from his wages. He told the claimant he wanted these to be refunded and was informed by the claimant that his request would be refused. During a heated exchange the second respondent referred to the claimant as a ‘fucking monkey’. The significance of this was that the claimant was black and the second respondent was white.

The employment tribunal found that, having applied the ordinary, everyday meaning of the term ‘during the course of employment’, that the interaction between the claimant and the second respondent had not occurred during the course of the second respondent’s employment by the first respondent. It concluded that the second respondent’s trade union membership was a matter of personal choice. The conversation in which the comment was made related to a personal dispute he had with the union about deduction of subscriptions. The EAT rejected the claimant’s ground of appeal that the tribunal had focused on what was said rather than looking at the ‘totality of the facts’.

In assessing the proper approach to be applied, the EAT noted that the tribunal had not fallen into error by asking simply if the incident was related to the employment relationship; and that it had acted as an industrial jury and balanced the different factors in assessing whether the words were uttered in the course of the second respondent’s employment. The weight it attributed to those factors was a matter for the tribunal, what was important was that it had considered and weighed the relevant aspects of the evidence.

The recent case of Grafters Circumstances where the impugned actions occurred away from work was scrutinised in Grafters where the claimant had accepted a lift from a fellow employee to attend Hereford racecourse at which she believed she had been assigned a shift on behalf of the respondent. The claimant arrived at the respondent’s office where she believed transport had been arranged to take her to Hereford. In fact, her shift had been cancelled, unbeknown to the claimant, and she was given a lift by the harasser (referred to as CD in the judgment) who then told her she was not required to work that day. The claimant requested that she be taken home, but instead CD drove her to a golf course where it was found that he subjected her to sexual harassment. On previous occasions, the respondent had provided transport for the majority of those undertaking shifts; one of the employees on that shift would drive the others in exchange for payment. That payment was made directly by the employees to the driver.

CD had messaged the claimant in the early hours of the day on which she was to work for the respondent.

The tribunal found that these messages from CD must have occurred while he was undertaking a night shift at another premises for the respondent.

The tribunal concluded that CD had sexually harassed the claimant, but that he was not acting in the course of his employment from when he provided the lift in his car to the claimant onwards.

The basis for the tribunal’s judgment that the harassment had not occurred in the course of CD’s employment included: • the fact that CD was not booked or due to work at Hereford racecourse and he had finished his work at the other location hours before giving the lift; • that the respondent had arranged transport for the claimant by a different employee, but because the claimant was late for her lift (she was not aware her shift had been cancelled), she got into CD’s car;

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‘In the course of employment’: what are the parameters? ‘acts which occur away from the workplace necessitate answering the question whether the events in which the impugned act occurred represented an extension of work’

• that whatever CD’s motive was in offering a lift on that day, it was not because of a requirement linked to his employment; and • that the lift offered by CD to the claimant was not arranged or sanctioned by the respondent and that they had no knowledge of it nor would it have been required because the claimant was not due to work.

In considering the approach by the tribunal in its judgment that CD was not acting in the course of his employment, a key aspect of its fact-finding had, in the EAT’s judgment, been overlooked – namely CD’s conduct of sending text messages whilst still at work, and whether these acts formed part of a ‘course of conduct’ with the sexual harassment when CD gave the claimant a lift.

HH Judge Taylor considered: ‘It was necessary for the employment tribunal to analyse CD’s conduct in the hours immediately preceding the incident, namely CD sending the claimant texts while CD ‘was working for the respondent at a shift’ and whether it formed part of a course of conduct with the sexual harassment when CD gave the claimant a lift.’

The tribunal should have ‘analysed the closeness of the connection between CD’s job for the respondent and why the claimant was in his car when the harassment occurred, including the fact that CD had previously driven the claimant to a job’ (para 32).

The rationale for finding the employment tribunal had erred was that ‘if CD persuaded, or took advantage of the fact that the claimant thought, that she was due to work at Hereford and that CD was offering her a lift as part of his work duties, that was potentially relevant to the question of whether the provision of the lift had a sufficient nexus or connection with work such as to render it in the course of employment and/or that it constituted an extension of work and the workplace or working activities’ (para 32).

Conclusions The issue of whether an incident occurred in the course of employment requires a process of weighing up all the relevant factual evidence and balancing points for and against to reach an objectively rational assessment.

Acts which occur away from the workplace necessitate answering the question whether the events in which the impugned act occurred represented an extension of work. Considering Grafters, matters appear pertinent in addressing that question might include: • Were preparatory steps by the harasser undertaken during the course of his employment?

• Was there a course of conduct which bridged working time and non-working time which fortified a finding that the act was an ‘extension of work and the workplace’?

• Was there evidence that the harasser exploited a mistaken belief by the victim that something was part of her work duties in furtherance of the harassment?

KEY:

EqA 2010

Equality Act 2010

Jones

Jones v Tower Boot Co Ltd [1997] ICR 254

Forbes

Forbes v LHR Airport Ltd [2019] ICR 1558

Campbell Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust [2025] IRLR 494 Stubbs

Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547

Grafters

AB v Grafters Group Ltd t/a CSI Catering Services International [2025] EAT 126

BRIEFING November 2025 21

contributor

guidelines The purpose of these guidelines is to minimise the need to edit submissions to conform to the ELA Briefing style.

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SUB-HEADINGS: only use initial capitals for the first word.

BULLETED LISTS: use bulleted lists rather than numbered or lettered paragraphs. Short lists should be introduced with a colon, begin with a lower case letter (unless, for example, there is a name) and have no punctuation at the end. Longer bulleted paragraphs should be punctuated at the end with semi-colons and with a full stop on the final bullet.

ABBREVIATIONS: REFERENCES: at the end of the article, list the short form and full name (with un-italicised case reference) of all cases and legislation, in the order in which they appear in the article. Please provide a hyperlink in the key to any case report cited, and for any reports and legislation you mention (for the digital edition).

• use symbols (%, US$,€ ); do not use ampersand unless it is part

CONTENT: articles should examine recent case law developments or legislative proposals, providing succinct analysis and practical tips and keeping the facts to a minimum (for example, there is often no need to summarise the decision of a lower tribunal). Submissions can also be opinion pieces, checklists, overviews of a topic suitable for more recently qualified readers, overviews of foreign laws or discussions of topics related to employment law, such as HR practice. ET decisions are rarely suitable. Articles should be balanced and address both employer and employee viewpoints where possible. They should be written in an accessible style, with short sentences and paragraphs, sub-headings to signpost underlying content, a conclusion and no footnotes.

• use standard abbreviations for organisations and the like

of a name

• use numerals for all numbers except one to nine and million/billion

• do not use stops for abbreviations such as etc, ie, eg • use acronyms where they exist, but with initial capital only: Acas, Ofcom, Nato, Defra

WORD COUNT: for all articles must be either 600-650, 1,100-1,200 or 1,800-1,900 words (reflecting the page length).

TITLES: should be no more than 50 characters, followed by the author’s name and firm/chambers. The topic should be clear from the title.

(CBI, ECJ, EAT, MoJ, BIS, ELA)

• if no standard abbreviation exists, first use its full name, then a short form

• only define short forms (in brackets without quote marks) if not doing so would be confusing

• refer to all legislation and cases (italicised) using an abbreviated form taken from the key

• sections of legislation should appear as follows: s.94 ERA (ERA s.94 at the start of a sentence), ss.94-95 ERA CAPITALS: use initial capitals for languages, personal titles, names of places, institutions (such as the current Government) and publications, statutory provisions (other than section and paragraph), months and public holidays. Use lower case for job titles (such as director, editor) and legal descriptors such as claimant, defendant, judge, counsel, court, tribunal, etc.

DATES: display in the following format: 24 July 2012.

ITALICS: italicise case names and names of publications.

INTRODUCTION: begin with a ‘standfirst’ paragraph of 30-40 words, which should introduce the subject covered in the article.

EXTRACTS: suggest a phrase or short sentence for each page, to be extracted as quotes.

QUOTES: use single quote marks where quoting from judgments or legislation (except for quotes within quotes). Do not italicise.

Include paragraph and page references in brackets after the quote mark (para 12, p.12).

diary

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18 November

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3 December

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4 November

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6 November

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21 May

London

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20 November

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