ELA Briefing : June 2025 by Cynthia Clerk

BRIEFING

June 2025

MARC JONES 1 EDITORIAL Marjon Law

CASPAR GLYN KC 2 ELA NEWS Cloisters

RICHARD LINSKELL 3 IN BRIEF Gunnercooke LLP

SIMON CLARK 5 WE NEED TO TALK ABOUT PAY: NOW, Slaughter and May HOW DO WE DO IT?

TINA DIN and DEBORAH CASALE 9 PROTECTED DISCLOSURES AND DETRIMENT: Irwin Mitchell LLP ESTABLISHING CLEAR CAUSAL LINKS

LOUISE PRICE 12 TUPE: WHAT HAPPENS WHEN AN EMPLOYEE OBJECTS

Doughty Street Chambers TO A TRANSFER?

PARAS GORASIA and FINNIAN CLARKE 15 TERRITORIAL AND INTERNATIONAL JURISDICTION

Old Square Chambers and Doughty Street Chambers AFTER CNN v BHATTI

IDS

ELA Briefing is published by IDS, part of Thomson Reuters. The IDS legal research team has been providing analysis and information on employment law since 1966.

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The views of the authors in ELA Briefing do not necessarily represent those of the ELA editorial board.

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Original design concept by Teresa Monachino www.studiomonachino.co.uk

Editor MARC JONES Marjon Law marc@marjonlaw.co.uk

Editorial committee

NATASHA ADOM Littler

KATHLEEN BADA Charles Russell Speechlys LLP

CLARE FLETCHER Slaughter and May

JO-ANNE GRAHAM / NICOLA TAYLOR Government Legal Department

CLIVE HOWARD Keystone Law

DOUGLAS LEACH Guildhall Chambers

RICHARD LINSKELL Gunnercooke LLP

CRAIG LUDLOW 3PB

LOUISE MASON Linklaters LLP

SARA MEYER DAC Beachcroft

NIKITA SONECHA Browne Jacobson

Advertising CYNTHIA CLERK Cynthiac@elaweb.org.uk

a word from the editor

The ELA Annual Conference was held last month and what an event it was: 700 delegates; excellent and interesting lectures; two ET Presidents from England and Wales and Scotland; and the President of the EAT. I cannot wait until next year’s annual conference – we might need a bigger venue!

‘I cannot wait until next year’s annual conference – we might need a bigger venue!’

Financial journalist and broadcaster, Martin Lewis, discussing the minimum wage, has said: ‘By law, employers need to ensure it takes effect in your first full pay period after the change. That means most of those on the lowest level of pay should have now seen the increase’. However, he added that the Low Pay Commission reports that more than 370,000 people are not being paid as much as they are entitled to. He added that the most frequent ‘breach’ occurs when workers must purchase their own uniform, tools or safety clothing. He clarified that if these items must be bought, the cost should not take an employee ‘below the equivalent minimum wage over your pay period, for example, over a month if paid monthly’. As well as this, all overtime should be paid, and tips or overtime cannot be used to ‘top up’ the minimum wage. As employment lawyers, we will be aware of the annual increase in rates and limits, and for large employers, the national living/minimum wage may not be a consideration. However, for those who advise small employers, especially those in the ‘third sector’, Martin Lewis’s comments are a welcome reminder.

A case reported in Personnel Today caught my eye, which related to a neurodivergent employee who presented a claim for unfair dismissal, disability discrimination and harassment. On 29 September 2022, Robert Watson, who was employed by Roke Manor Research as a software engineer, informed his line manager that he might be neurodivergent, which explained some of his difficulties in the workplace. Mr Watson struggled with poor timekeeping, had difficulty focusing and often appeared distracted – symptoms later linked to ADHD, which was diagnosed in November 2022. Between 28 November and 15 December, a project leader, both in front of team colleagues and on a one-to-one basis, questioned Mr Watson’s working hours and patterns, and the time spent at his project desk. The tribunal found that the project leader, ‘expressed non-verbal frustrations such as sighing and exaggerated exhales’. On 15 December, in a one-to-one meeting, during which Mr Watson explained to the project leader that his comments and behaviour were making him feel anxious and stressed, the project leader stated that his comments had been designed to put pressure on Mr Watson. The tribunal found that the project leader used the phrase ‘putting your ADHD aside for a moment’, which showed a disregard for the need to accommodate Mr Watson’s disability. The tribunal concluded that Mr Watson had been subjected to discrimination under ss.15, 20, 21 and 26 of the Equality Act 2010. However, his claim for unfair dismissal and several other counts of discrimination against his employer were dismissed. Employment Judge Rayner stated: ‘I conclude the reason for the expressions of frustration arose from things which themselves arose from Mr Watson’s disability such as his time-keeping and working patterns and the fact that he was spending time away from his project desk.’ There will be a remedy hearing to determine quantum.

If you would like an article to be considered by the editorial committee, please send this to me by 9.00am on 4 July at ELABriefingEditor@elaweb.org.uk

I sign off with a quote from US writer, Steve Silberman: ‘Neurodiversity may be every bit as crucial for the human race as biodiversity is for life in general.’

MARC JONES, Marjon Law

ela news

One year down and one year to go

This Management Committee has been in post for a year and has a year to go. Our annual report sets out the many things that we, as a team, have completed. It has been a really busy year but laurels are not being rested upon. Plans abound and we have three main aims over the next 12-months.

First, ELA will become the ‘ERB Experts’ – training our members and supporting them as the laws form and are introduced, engaging with legislators and informing the public discourse.

‘ELA

will lead public, academic and professional discussion on employment disputes in 2026’

Secondly, ELA will lead public, academic and professional discussion on employment disputes in 2026 on the back of our Cambridge Research Project. It has been two years of hard work by Sarah Fraser Butlin KC and Professor Catherine Barnard, and will make a real contribution to the public debate.

Thirdly, there is something that I hope none of you notice. For the second half of 2025, operational resilience is my commitment to our members and then, once the new team have a full year in post, we can start to reform and develop what ELA can do to support and develop you all in your practices as expert employment lawyers.

My personal goal is also to ensure that I visit every region, having already been to Aberdeen, Southampton and Leeds. If I did not see you at the Annual Conference, I hope to see you over the coming year, whether it be in Scotland, Wales, Northern Ireland or England!

It promises to be an exciting and busy year ahead. I am looking forward to our plans and continuing to work with the very talented and hardworking group of lawyers that make up all the ELA Committees.

Recent activities

• The ELA Annual Conference was held in London on 15 May.

• Training Committee: webinars included the ‘MyHMCTS webinar’, 21 May.

• The regions: during May, there was ‘An Introduction to Advocacy for Junior Employment Lawyers’ course in Leeds, a social lunch in Newcastle and a quiz night in Manchester.

Looking ahead

• Training Committee: forthcoming webinars include ‘Employment in Education’ on 5 June.

• There will be an ELA Summer Drinks event in London on 11 June and a twoday online course, ‘TUPE: The Law and Practice’, on 17/18 June.

• In June, the Legislative & Policy Committee will respond to the open consultation on the Equality (Race and Disability) Bill on mandatory ethnicity and disability pay gap reporting, and an open call for evidence on equality law.

• The Pastoral Committee has organised webinars on the menopause (3 June) and digital wellbeing (19 June).

• The regions: there will be a social lunch in Winchester on 19 June.

CASPAR GLYN KC, Cloisters

in brief

Gender wars: the battle continues despite clarity It has been interesting watching responses to the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16, which was handed down on 16 April. The decision was greeted by some lawyers who argued that sex in the Equality Act 2010 meant biological sex as opposed to self-declared or certificated sex as giving welcome clarification of the law as it always was and was intended to be. In the other corner, lawyers who argued that sex means the sex a person identifies with, or, at the very least, the sex declared under a gender recognition certificate, greeted the decision with howls of objection and a demand to wait for EHRC guidance to assess the true implications.

‘it is a careful balancing act for the EHRC to produce guidance in an area where there often appears to be two mutually exclusive outcomes’

The ECHR swiftly issued a statement on 25 April confirming that sex meant biological sex and giving interim guidance for areas such as the use of toilet and changing facilities, competitive sports, schools and whether single sex or sexual orientation associations needed to admit trans people into them.

It also announced that they were working ‘at pace’ to update the statutory and non-statutory guidance, which would be issued by the end of June for ministerial approval following a two-week consultation. However, the House of Commons Women and Equalities Committee asked the EHRC to extend the consultation to a minimum of six weeks to allow all stakeholders to contribute. The consultation period was therefore extended to 30 June, focusing only on those areas affected by the For Women Scotland decision, especially the practical implications; the legal issues having been made clear already. In addition to completing questionnaires, ‘affected protected characteristic groups’ would also be invited to Q&A sessions with the EHRC to answer questions on its understanding of the Supreme Court’s judgment, the consultation process, where views are being sought and what can and cannot be changed in the draft Code of Practice.

It is a careful balancing act for the EHRC to produce guidance in an area where there often appears to be two mutually exclusive outcomes. We can only hope that it will go some way to clarifying how employers should treat gender as opposed to sex. It may be longer before we learn whether the Gender Recognition Act is a circle that can be squared. In the meantime, employers and employees will continue to struggle to deal sensitively with the practical difficulties raised by this issue.

Vicarious liability does not transfer under TUPE

The Briefing does not usually cover medical negligence cases; however, one recent High Court case raised an interesting point concerning TUPE. In ABC v Huntercombe (No 12) Ltd [2025] EWHC 1000 (KB), the claimant sought damages for ‘wrongs’ suffered while an in-patient at Maidenhead Hospital, which was owned and operated by H, for the alleged tortious acts of its employees. The employees’ employment was transferred by TUPE to AYP and a preliminary issue arose as to whether liability for their acts also transferred from H to AYP, and, if so, did the benefit of H’s insurance also transfer.

Previous authorities on the transfer of tortious liabilities under TUPE addressed the liability of an employer to its employee, not vicarious liability to a third party. The court noted that the purpose of the Acquired Rights Directive (Directive 2001/23 [2001] OJ L82/16) was to safeguard the rights of employees after a transfer. The key question turned on the meaning of reg 4(2)(a), which provides that ‘all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred to the transferee’.

In Doane v Wimbledon FC [2007] 12 WLUK 2, the county court had held that liability for a negligent tackle committed by a Wimbledon FC player transferred to MK Dons when the latter acquired the club. The reasoning was that, but for the employment contract, the negligent act would not have occurred and so it did arise in connection with the employment contract transferred. The High Court decided the Doane decision should not be followed since the obligation was not owed by the employer to the employee but by the employee to a third party. It held, first, that the connection between the liability of a transferor and the contract must be direct, in the sense of being a liability that the transferor has to an employee if the liability is to transfer and, secondly, that if the transferor has a vested (or contingent) right against a third party which arises purely as a result of such a liability, that right will also transfer. Accordingly, the liability for the alleged negligent act did not transfer but, if it had transferred, so would the right to claim under an employer’s public liability insurance.

Part-time workers: the sole cause of less favourable treatment

Does a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (PTWR), implementing the Part-Time Work Directive (Directive 97/81 [1997] OJ L14/9 (PTWD)) require the less favourable treatment to be the sole cause of the treatment in question or just an effective cause of the treatment? That fairly simple question has caused more litigation than might be imagined. The Court of Session (Inner House) case of McMenemy v Capita Business Services Ltd [2007] IRLR 400, ruled that it was necessary for the worker to establish that the worker’s part-time status was the sole cause of the less favourable treatment, flowing from the use of the word ‘solely’ in the PTWD.

On the other hand, Elias P in the EAT in Sharma v Manchester City Council [2008] ICR 623, held that less favourable treatment under the PTWR will be established if claimant’s part-time status is merely an effective cause, even if not the sole cause.

A majority of the Court of Appeal (equivalent in hierarchy to the Court of Session (Inner House)) has ruled in Augustine v Data Cars Ltd [2025] EWCA Civ 658 that McMenemy was wrongly decided, approving Elias P’s analysis in Sharma; however, it decided that consistency required that it be followed and that the matter should be determined by the Supreme Court, to which leave to appeal was granted.

Employers’ views about artificial intelligence (AI)

There is a lot of talk about AI and its impact on the workplace. Some have argued that this technology may have a more profound effect on employment than any other new technology introduced since the industrial revolution

A survey of 1,000 employers, commissioned by Acas, reveals that a third believe AI will bring increased productivity, while only some 10% thought, respectively, it would give a competitive edge, would increase knowledge or thought more work would be completed with fewer staff. Around 10% also thought it would bring no benefit at all.

Acas recommended the introduction of clear policies and consultation with workers and representatives. For some reason, it also suggested that the introduction of AI might also require a change to terms and conditions of employment, although I have to say that it is difficult to conceive what term might be changed simply due to the introduction of AI.

Acas suggests selling the benefits of AI while reassuring staff that human involvement will still be needed. It also reminds employer that that outputs should be checked for accuracy, tone and bias. No doubt AI will also spawn plenty more completely pointless surveys.

RICHARD LINSKELL, Gunnercooke LLP

We need to talk about pay: now, how do we do it?

SIMON

CLARK, Slaughter and May

In the UK, pay reporting requirements have expanded significantly in the past 10 years, although currently they focus primarily on executive pay, gender pay gap reporting and equal pay audits. Important new developments are on the horizon, in both the EU and the UK. However, they may have unintended consequences for employers, not least from a competition perspective.

The UK position

Gender pay gap reporting has been in place for large UK employers since 2017. There is also a separate regime for executive pay reporting which is beyond the scope of this article (other than to note that, in this respect and in contrast to what we discuss below, the UK the UK has rowed back from EU requirements, via the Companies (Directors’ Remuneration and Audit) (Amendment) Regulations 2025. These regulations, which came into force on 11 May 2025, repealed most of the disclosures added to the directors’ remuneration reporting regime as part of the implementation the EU Shareholder Rights Directive.)

The Government launched a pay transparency pilot in March 2022, asking participating employers to list salary details on job adverts, and to stop asking about salary history during recruitment. However, the pilot was quietly paused in May 2024, ostensibly to learn from other countries who are exploring legislative options. The Government acknowledged that ‘pay transparency is still an emerging area, and we do not yet know whether there could be unintended negative impacts’.

One year later, the pause may have ended. In its broad call for evidence on equality law and policy, the Government has invited parties to provide evidence of the possible implications of introducing pay transparency measures for employers. The particular measures noted in the call for evidence include employers:

• providing the specific salary or salary ranges of a job on the job advert or prior to interview;

• not asking candidates their salary history;

• publishing or providing employees with information on pay, pay structures and criteria for progression;

• providing employees with information on their pay level and how their pay compares to those doing the same role or work of equal value; and

• identifying actions that they need to take to avoid equal pay breaches occurring or continuing.

Unlike the initial pilot, which was focused on improving gender pay equality, the Government is now looking at pay transparency more broadly, in relation to sex, race and disability. The forthcoming Equality (Race and Disability) Bill, which is subject to an ongoing consultation and expected to be published by July this year, anticipates using a similar framework for gender pay gap reporting for ethnicity and disability.

The Employment Rights Bill is also set to expand certain pay transparency measures. Clause 31 provides that large employers (with 250 or more employees) may be required to create equality action plans on addressing gender pay gaps. Under clause 32, regulations may also extend gender pay gap reporting to cover

We need to talk about pay: now, how do we do it?

‘the EUPTD definition of ‘‘pay’’ is wider than that used in the UK gender pay reporting regime – it encompasses all types of remuneration or benefits which a worker receives’

an employer’s outsourced/contract workers. Although the initial suggestion from the Plan to Make Work Pay was that companies would be required to include data for their outsourced/contract workers in their gender pay gap reporting, the wording of clause 32 simply requires the identity of the outsourced service provider to be disclosed. The intention seems to be to create increased transparency of supply chains, which may drive a change towards greater equality. However, this is something which is also being considered; it asks whether outsourced workers should be able to claim equal pay using direct employees of the client as comparators.

The European position

The EU Pay Transparency Directive (EUPTD) brings in sweeping measures to increase pay transparency. Once again, the driving force is to combat pay discrimination and help close the gender pay gap in the EU, which averaged 13% in 2024 (as did the UK’s figure for this period).

The EUPTD applies to all employers of workers (ie workers with an employment contract or employment relationship as defined by law) in the EU. The EUPTD definition of ‘pay’ is wider than that used in the UK gender pay reporting regime, as it encompasses all types of remuneration or benefits which a worker receives, including bonuses, overtime compensation, share options and long-term incentive plans (LTIPs), statutory sick pay, dismissal payments, other forms of statutory compensation and occupational pensions.

There are also pay transparency provisions within the EU Corporate Sustainability Reporting Directive (CSRD), although these are not as extensive as the EUPTD provisions.

The CSRD provisions are also currently subject to review under the ‘omnibus proposals’, a package of legislative changes introduced by the European Commission to simplify sustainability reporting requirements.

Summary of the main provision of the

Transparency on recruitment

EUPTD

Hirers must provide candidates with objective and gender-neutral information on the pay or pay range for the specific position. This must be in the job vacancy notice or shared with the applicant prior to the interview. Employers will also be prevented from asking candidates about their pay history.

Information for workers

Workers and their representatives have the right to request and receive in writing, information on their individual pay level and the average pay levels, broken down by sex, for categories of workers performing the same work as them or work of equal value to theirs.

Employers must also provide a description of the gender-neutral criteria used to determine pay levels and pay progression. Employers must inform all workers of this right on an annual basis and respond to any request within two months. Member States can choose to exempt employers with fewer than 50 workers.

Confidentiality clauses

The EUPTD prevents employers from using confidentiality clauses to prohibit employees from disclosing their pay details to their colleagues when they are seeking to enforce their right to equal pay.

Gender pay gap reporting and joint pay assessments

From 7 June 2027, employers with more than 250 workers must produce annual gender pay gap reports. Smaller companies with more than 100 employees must produce these reports every three years from 7 June 2031. These reports must satisfy strict criteria, including data on, for example, pay gap by category of worker, broken down by ordinary basic salary and bonus and other variable pay.

Significantly, where pay reporting reveals a gender pay gap of at least 5% in any category of workers, the employer must either objectively justify it or remedy it within six months. Failing this, it must carry out a joint pay assessment in co-operation with workers’ representatives, covering the whole workforce.

We need to talk about pay: now, how do we do it?

‘employers should engage in the minimum amount of disclosure necessary to discharge their obligations under the EUPTD and other relevant legislation’

Timing and relevance to the UK

EU Member States are required to implement the Directive by 7 June 2026. A UK or other non-EU registered company with more than 100 workers based in a Member State will need to comply with the relevant EUPTD implementing legislation in that Member State.

The EUPTD will likely have an indirect levelling up effect on pay transparency practices in the UK, particularly in anticipation of the UK Government taking similar steps in response to its call for evidence. There is a significant overlap between the two sets of proposals, although in some areas, the UK legislation is already more developed, for example in relation to gender pay gap reporting and confidentiality clauses (see s.77 of the Equality Act 2010).

Tensions with competition law

These pay transparency initiatives need to be analysed in light of competition law and practice.

UK competition law prohibits the exchange of competitively sensitive information. As a general rule of thumb, information which could influence the recipient’s commercial decision-making is likely to be competitively sensitive information (CSI). Salary details are likely to fall squarely within this bucket.

CSI can only be exchanged with competitors if it is publicly available, sufficiently aggregated and anonymised, or historic information that is unlikely to reduce uncertainty in the market and/or influence the strategic decision-making of the recipient. It is also permitted if the disclosure is required by law.

There is a very low bar for the exchange of CSI to be illegal. For example, even if information does not come directly from a competitor but from a third party (such as a recruitment agency or consultancy), was unsolicited or received accidentally, the receipt of it may be unlawful. The exchange of CSI may even be unlawful even if the parties do not intend to use the exchanged information for anticompetitive effects.

There has been relatively little analysis to date of the interplay between increased pay transparency legislation and competition law. This is particularly important given increased interest from competition regulators in employment issues. For example, in March 2025, the Competition and Markets Authority imposed fines totalling more than £4 million following a finding that five sports broadcast and production companies had shared sensitive information on fees for freelance workers, including data on day rates and price rises. Similar action has be taken by a number of EU competition authorities, for example in Lithuania, Greece, Poland and Romania.

The Competition and Markets Authority (CMA) has indicated that it will publish further guidance to employers on how to avoid anti-competitive behaviour in labour markets in 2025. In the meantime, employers should engage in the minimum amount of disclosure necessary to discharge their obligations under the EUPTD and other relevant legislation, and should make this information publicly available online where possible to mitigate competition law risk.

Equal pay pitfalls

The competition law concern with pay transparency is that it leads to greater setting of salaries based on market rates. This practice has also come under the spotlight recently in an equal pay context. In Thandi, Next sought to justify paying a lower rate of basic pay (based on the market rate for such roles) to its retail consultants than its warehouse operatives. It claimed that it had a legitimate aim in doing so – namely shoring up its viability, resilience and successful business performance. However, the tribunal concluded that, when it came to the differential in basic pay, Next could have afforded to pay its retail staff more but instead prioritised keeping its labour costs in check – ie this was about costs saving (only) which is not a legitimate aim that can be relied upon to establish the defence.

The employment tribunals are alive to the issue that market rates for particular roles may be tainted by historical attitudes and perceptions about the value of men’s work versus women’s work – and that citing market forces will not of itself excuse the disparity between pay rates for roles that are predominantly held by men and those predominantly held by women. Employers who rely on this argument risk being criticised for perpetuating the kind of pay inequality that the legislation is intended to address.

We need to talk about pay: now, how do we do it?

‘the EUPTD will require employers to look more closely at how they set pay rates –and consider whether work of equal value is being remunerated fairly’

More broadly, the EUPTD will require employers to look more closely at how they set pay rates – and consider whether work of equal value is in fact being remunerated fairly. This will become more relevant to the UK if the Government adopts the measures outlined in its call for evidence. The potential financial exposure which can result from carrying out a job evaluation scheme to identify and address equal pay issues can be existential, as illustrated by cases such as Birmingham City Council.

Practical steps to mitigate risk

Although much of the enabling legislation for EUPTD is not yet in force, and the UK proposals are at a formative stage, there are ways that employers can prepare for greater pay transparency obligations:

• identify affected workforces and current policies on setting pay, pay progression and job categorisation. Are these adequately documented and underpinned by an independent and objective evaluation methodology?;

• review recruitment processes, including decisions on pay ranges and job descriptions, instructions to recruiters and interview questions;

• exercise caution when using external recruiters, for example to establish salary benchmarks or market rates for a role. Make it clear in instructions to them that information must be obtained from public sources (such as competitor websites) or sufficiently aggregated, anonymised and genericised such that it is not possible to identify the origin of the information. It is also advisable to ensure a minimum number of employers have been benchmarked;

• monitor competitive trends in the relevant sector(s). If there are skills in high demand but short supply, or if a particular competitor is on a hiring spree, these situations could create high-risk conditions leading to illegal discussions or agreements. Employers should remind employees to exercise caution at social events or exchanging messages on social media with competitors;

• implement robust data collection methods to capture and analyse numerous data sources, including not just pay data such as base pay, bonuses and other forms of compensation and benefits, but also relevant equality data such as race and disability; and

• consider conducting a ‘dry run’ pay gap analysis to identify any gaps or issues (particularly in relation to race and disability pay gaps).

KEY:

Companies (Directors' Companies (Directors' Remuneration and Audit) Remuneration and Audit) (Amendment) (Amendment) Regulations Regulations 2025 2025 (SI 2025/439)

EU Shareholder Directive 2007/36 on the Rights Directive exercise of certain rights of shareholders in listed companies [2007] OJ L184/17

EUPTD or the EU Pay Directive 2023/970 to Transparency Directive strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms [2023] OJ L132/21

LTIP

Long-Term Incentive Plan

CSRD or EU Corporate Directive amending Sustainability Reporting Regulation 537/2014, Directive Directive 2004/109, Directive 2006/43 and Directive 2013/34 as regards corporate sustainability reporting [2014] OJ L322/15

CSI

Thandi

Competitively sensitive information

Competition and Markets Authority

Thandi v Next Retail Ltd ET1302019/2018

CMA

Protected disclosures and detriment: establishing clear causal links

TINA DIN and DEBORAH CASALE, Irwin Mitchell LLP

Dismissing an employee for making a protected disclosure is an automatic unfair dismissal under s.103A of the Employment Rights Act 1996 (ERA); subjecting the employee to a detriment because they have made a protected disclosure is unlawful under s.47B of the ERA. The EAT provided helpful guidance in Ford, which serves as a helpful reminder to employers on what is required to establish a causal link between a protected disclosure and detriment.

Clarification on causation

Ford reinforces the need for a clear and substantial connection between the protected disclosure and any alleged detriment or dismissal. It emphasised that the disclosure must have played more than a trivial role in the employer’s decision.

Burden of proof

The case highlights that the burden of proof lies with the employer to demonstrate that the dismissal or detriment was not related to the protected disclosure:

• in detriment claims under s.47B, the initial burden is on the claimant to establish facts from which the tribunal could conclude, in the absence of an adequate explanation, that the protected disclosure was a material (ie more than trivial) reason for the treatment complained of. Once this threshold is met, the burden shifts to the employer to prove that the treatment was not influenced by the protected disclosure;

• however, in dismissal claims under s.103A, the claimant must prove that the disclosure was the sole or principal reason for dismissal, which is a higher evidential threshold.

Decision-maker’s intentions

The tribunal stressed the importance of examining the decision-maker’s true intentions and the facts of the case. This means that employers need to ensure their rationale for any adverse action is well-documented and clearly separated from the disclosure.

Background

The claimant, Mr Malcolm Ford, was a pensions administrator at the Scottish Public Pensions Authority (SPPA), who raised concerns about inconsistencies in the application of regulations for police injury benefits, which resulted in some officers being overpaid and others underpaid. After voicing these issues to his employer, he was seconded to another department, purportedly to give him a break from the problematic casework until the issues were resolved. Despite assurances that the reassignment was not punitive, Mr Ford considered that he was being penalised for his whistleblowing.

Protected disclosures and detriment: establishing clear causal links

‘the EAT took issue with the tribunal’s handling of Mr Ford’s detriment claims’

He also had concerns about the firefighter injury benefit scheme. He submitted these concerns to Audit Scotland using an online form, but did so under the name of Mr Dunn, an acquaintance. Together, they met with Audit Scotland to discuss the issues. Mr Ford also sent emails, under Mr Dunn’s name, to the First Minister and the Cabinet Secretary for Finance, Economy and Fair Work, raising similar concerns.

The SPPA initiated an investigation into seven allegations of misconduct against Mr Ford, including accusations that he had met with Audit Scotland despite an ongoing SPPA investigation, falsely accused the SPPA of corruption and misuse of public funds, and that staff were told to provide incorrect information or face disciplinary action. He was called to a disciplinary hearing on charges of sharing official information with Mr Dunn, using Mr Dunn’s identity in correspondence, failing to comply with management instructions and making inflammatory statements in emails to high-ranking officials.

Mr Ford was summarily dismissed for misconduct but he contended that his dismissal was automatically unfair and that he had been subjected to detriments due to his protected disclosures.

The employment tribunal sits

The tribunal concluded that Mr Ford’s concerns about the police injury benefit cases qualified as protected disclosures under s.43B ERA. However, they concluded that his reassignment was not due to these disclosures. Although there was a connection between the disclosures and his reassignment, other unrelated factors influenced the decision. Regarding the issues raised with Audit Scotland, the First Minister and the Cabinet Secretary, the tribunal also recognised these as protected disclosures.

Mr Ford contended that being investigated for two of the allegations constituted a detriment, but the tribunal dismissed this argument, stating that the investigation was based on his conduct, not the protected disclosures. Furthermore, the tribunal held that the primary reason for Mr Ford’s dismissal was his conduct, leading to the rejection of that part of his claim. Mr Ford subsequently appealed both findings.

The EAT responds

The EAT upheld the tribunal’s decision regarding the unfair dismissal claim, finding it to be sound. The specific emails sent by Mr Ford that were included in the disciplinary allegations were not deemed to be protected disclosures. Moreover, it found that even if they contained information that could have been considered protected disclosures, the manner in which they were expressed raised conduct-related concerns.

However, the EAT took issue with the tribunal’s handling of Mr Ford’s detriment claims. It concluded that the tribunal did not adequately explain why it concluded that the secondment was not a detriment and failed to apply the correct legal tests.

The decision to reassign Mr Ford was influenced by his disclosure in a manner that was more than trivial. The secondment was clearly something Mr Ford was unhappy about and believed this to be a detriment. If the tribunal thought that a reasonable worker would not view it as a detriment, they needed to state and justify this. As a result, the EAT sent the detriment claim back to the tribunal to reconsider whether the secondment and the disciplinary investigation constituted detriments due to Mr Ford’s protected disclosures.

What is the significance of Ford?

The ruling in Ford highlights the challenge of distinguishing between actions taken against an employee for making protected disclosures and actions taken against them for their subsequent conduct during the whistleblowing process, such as launching an investigation and potentially dismissing them. Mr Ford did not succeed in his whistleblowing claim for automatic unfair dismissal, as his protected disclosures were not the sole or principal reason for his dismissal. Instead, the main reason for Mr Ford’s dismissal was his conduct. However, in a detriment claim, it is sufficient for the protected disclosure to have influenced the employer’s decision to impose the detriment in a manner that is ‘more than trivial’. Therefore, those advising employers should exercise caution when considering instigating investigations and framing disciplinary allegations against an employee who has made protected disclosures, particularly if the conduct in question is related to those disclosures.

Protected disclosures and detriment: establishing clear causal links

‘employers’ advisers should ensure a clear and distinct separation between a protected disclosure and any subsequent actions taken regarding the employee, such as reassignment, appraisal, investigation or dismissal’

Identifying protected disclosures

For those advising employers, it is important to be able to spot a protected disclosure. As employees are not required to explicitly state that they are making a protected disclosure, or put it in writing, a cautious approach must be taken. Broadly speaking, if an employee discloses information that they reasonably believe is in the public interest and indicates one or more types of wrongdoing (including miscarriages of justice, health and safety concerns, criminal offences or breaches of legal obligations) and reports this to the correct person, usually being their employer, they are likely to be making a protected disclosure.

Procedures when handling protected disclosures

Alongside being able to identify when a protected disclosure has been made, employers must be advised how to address them in a suitable manner if raised by someone they manage. Factors for employers to consider include:

• ensuring that there is a clear and comprehensive whistleblowing policy in place that outlines the process for making protected disclosures, the types of concerns that qualify and the protections afforded to whistleblowers. These policies should be regularly updated to ensure they are compliant with best practices;

• training managers and employees regularly on the importance of whistleblowing, how to recognise protected disclosures and the steps they should take when a disclosure has been made;

• always carrying out prompt and impartial investigations into disclosures, ensuring that the findings are transparently communicated to the whistleblower; and

• adopting measures to protect whistleblowers from retaliation, such as providing confidential channels where they can report concerns, enforcing anti-retaliation policies, implementing systems to monitor the treatment of whistleblowers and providing support such as counselling services.

Disciplinary action

Employers can discipline an employee for actions related to a protected disclosure (for instance, if they breached confidentiality), but they must not act in a negative way against them for making the disclosure itself. Future decisions affecting the employee, such as performance reviews, misconduct or redundancy, should be unbiased and unimpacted by previous disclosures. If the protected disclosure influences an employer’s decision to discipline an employee even slightly, it can establish a causal link. The employer must prove the reason for any disadvantage and the tribunal will examine the decision-maker’s true intentions. Employers must be advised to ensure that their actions are not linked to the disclosure and have written evidence to support their rationale.

For those advising employees, it is worth remembering that caution should be exercised in relation to the manner in which the protected disclosures are raised, to avoid any misconduct issues defeating an argument for automatic unfair dismissal. In terms of remedy, a detriment claim may be limited to injury to feelings, compared with the loss of earnings flowing from a dismissal.

Summary

The EAT’s decision underscores the importance for employers’ advisers to ensure a clear and distinct separation between a protected disclosure and any subsequent actions taken regarding the employee, such as reassignment, appraisal, investigation or dismissal. This separation is essential to prevent any detriment from being established.

TUPE: what happens when an employee objects to a transfer?

LOUISE PRICE, Doughty Street Chambers

TUPE transfers can be fraught with challenges for all parties. Particular issues arise when an employee objects to a pending transfer. Following the EAT’s decision in De Marchi, parties can be clearer about the consequences of objections and can consider what action to take and what is best practice in light of those consequences.

All parties affected by a TUPE transfer should be aware that there are four potential primary scenarios when an employee objects to or is unhappy with the post-transfer working conditions:

• employee objection;

• employee objection plus material detriment, and the employee treats the contract as having ended;

• no employee objection plus material detriment, and the employee treats the contract as having ended; or

• objection plus material detriment, but the employee does not treat a contract as having ended. This article considers the legal effect of each of these on the contract of employment.

Objection

As provided for by reg 4(8), if an employee objects to a transfer, their employment ends at the date of transfer, and is not considered a dismissal for any reason.

Objection, plus material detriment

The position is different, however, if there is material detriment. Under reg 4(9), if the transfer involves a substantial change in working conditions to the material detriment of the employee, the employee is entitled to treat their employment as having been terminated. Contrary to the position under reg 4(8), this termination will be treated as a dismissal. (An employee may also claim constructive unfair dismissal, a right preserved by reg 4(11). However, in many cases, the protection afforded under reg 4(9) will be much wider.)

No objection, but material detriment

As the EAT made clear in De Marchi, an employee does not have to object pre-transfer even if they are concerned about the post-transfer working conditions. They can wait until the transfer has taken place to see what the new conditions are and how they work before electing to treat the contract as having been terminated. If an employee does not object to the transfer, his or her employment contract will transfer. If it then becomes clear there is a substantial change in working conditions to the material detriment of the employee and the employee decides post transfer to elect under reg 4(9) to treat the contract has having been terminated because of that detriment, they will be treated as having been dismissed by the transferee (De Marchi, para 22).

The EAT clarified that to treat the contract as having ended, the employee must have ‘communicated by some unequivocal and unambiguous over act, which is inconsistent with the subsistence of the contract’ (para 25). Although that does not necessarily have to be in the form of an express statement by the employee.

TUPE: what happens when an employee objects to a transfer?

‘in Humphreys, the Court of Appeal held, that "an employee has a right to object to the transfer of his contract of employment”'

Objection plus material detriment: when an employee wants the contract to continue

So what happens if an employee objects, there is a material detriment but the employee does not treat their contract as having been terminated? This was the issue that the EAT considered in De Marchi.

Mr De Marchi was a bus driver. The route upon which he worked was TUPE-transferred to a different bus company operating from a different bus garage. He did not want to change bus garages as this would substantially lengthen his commute to and from work, which was, in the employment tribunal’s view, a material detriment. He therefore objected to the transfer. However, the tribunal found that he had not treated the contract as having been terminated. In this circumstance, what happens to the contract of employment?

The EAT held that the relevant transfer operates to terminate the contract of employment with the transferor (para 25), so the contract does not continue.

The EAT reasoned that the structure of reg 4 makes ‘clear that an employee’s objection to becoming employed by the transferee operates first, to preclude a transfer of the contract of employment and then to terminate the contract of employment one way or another’ (para 29). It referred to the reasoning of the Court of Appeal in Humphreys, which explained that ‘in light of the decision in Merckx … Article 4(2) of the Directive 77/187 is to be understood as meaning that, if the transfer of an employee’s contract of employment would result in a substantial change in working conditions to his detriment and he objects to the transfer on those grounds, the contract is to be regarded as having been terminated because the transfer involves a substance change in working conditions to the detriment of the employee’.

As the EAT pointed out, although Humphreys concerned the interpretation of the 1981 Regulations and Directive 77/187 (the Acquired Rights Directive (ARD)), the relevant provisions were materially identical to Article 4(2) of EC Directive 2001/23.

The remaining question is whether, in these circumstances, the employee is deemed to have been dismissed at all or does the position in reg 4(8) stand and they are not considered dismissed for any reason?

To answer this question the EAT relied upon the wording of reg 4, the need to give effect to the EC Directive 2001/23 and the reasoning in Humphreys.

In Humphreys, the Court of Appeal held, that ‘an employee has a right to object to the transfer of his contract of employment, and that member states can decide for themselves what consequences for the existing contract shall be if he does so. However, it is also saying that if the contract is terminated in such circumstances because of some adverse change in conditions falling within the scope of Article 4(2) … the employer must be regarded as having been responsible for the termination of the contract’ (para 427D-G).

Applying this to reg 4 of the 2006 Regulations, the EAT concluded it was clear that ‘if an employee objects to the transfer by reason of a substantial change in working conditions to his material detriment, the contract is to be regarded as having terminated for that reason and the employee shall be treated as having been dismissed by the transferor, against which entity any remedy lies’ (para 34).

The EAT considered that construing reg 4(8) as requiring that he shall not be treated, for any purpose, as having been dismissed by the transferor, is to construe it in a way would not give effect to Article 4(2) ARD (para 35). It held that in order to ensure that this is given effect, the proviso in reg 4 (8), ‘subject to paras (9) and (11)’, was enacted and operates to disapply the position for which the ‘second limb of reg 4(8) would otherwise provide, namely that the employee will not be treated as having been dismissed’ (para 35).

It follows that although the objection means that the transfer terminates the contract of employment, this is considered a dismissal for which the transferor is liable.

Following De Marchi, all parties should now be clearer about the potential legal consequences and claims and liabilities when an employee objects to a transfer.

TUPE: what happens when an employee objects to a transfer?

‘following De Marchi, all parties should now be clearer about the potential legal consequences and claims and liabilities when an employee objects to a transfer’

KEY:

TUPE or the 2006 Transfer of Undertakings Regulations (Protection of Employment) Regulations 2006 (SI 2006/246)

De Marchi De Marchi v London United Busways Ltd [2024] EAT 91

Humphreys University of Oxford v Humphreys [2000] ICR 405 CA

Merckx Merckx v Ford Motor Co (Belgium) SA (C-171/94) [1997] ICR 352

1981 Regulations Transfer of Undertakings (Protection of Employment Regulations 1981 (SI 1981/1794)

ARD or Acquired Rights Directive 77/187 on the Directive 77/187 approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses [1977] OJ L61/26

Directive 2001/23 Directive 2001/23 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses [2001] OJ L82/16

Territorial and international jurisdiction after CNN v Bhatti

In Bhatti, the EAT has recently provided some welcome clarity on the principles to be applied in employment disputes with an international element regarding both territorial and international jurisdiction. Below, the Briefing sets out the relevant facts and legal principles applied in the case, before explaining the EAT’s judgment and offering observations about the central implications of this case.

Factual background

Saima Bhatti (known internationally as Saima Mohsin) began working for CNN in January 2013. She worked initially as a local correspondent in Pakistan, but over time began to work across Asia and, less frequently, in London and Europe as an international correspondent. In 2014, while on assignment in Jerusalem, her foot was run over by a truck, injuring her. In March 2017, struggling with the injury, she gave up her flat in Bangkok and moved to London to recover, while performing some occasional work for CNN’s London Bureau. She was dismissed from her role at CNN’s London Bureau later that year.

She brought claims relating to unfair dismissal, equal pay, disability and race discrimination in 2018, before Brexit. CNN did not file a substantive defence, but instead contended that the employment tribunal did not have either territorial or international jurisdiction to hear the claims. These claims were stayed pending her High Court personal injury claim, which was settled in March 2020. The stay was subsequently lifted, and the matter proceeded to a Preliminary Hearing to determine jurisdiction before Klimov EJ in 2023.

In a judgment dated 11 August 2023, Klimov EJ found that:

• the claimant’s employment relationship lacked sufficient connection with Great British employment law to give rise to territorial jurisdiction for any part of her claims prior to March 2017 (para 176);

• the tribunal did have territorial jurisdiction for all aspects of her claim arising from 1 March 2017 onwards (para 176);

• the tribunal also had international jurisdiction to hear the claims, on the basis that Parliament clearly intended such claims to be heard in British courts and had conferred jurisdiction on them via statute (paras 182-189);

• alternatively, if necessary rule 8 of the Employment Tribunal Rules of Procedure conferred international jurisdiction (para 190);

• alternatively, if necessary, there was international jurisdiction to hear the claimant’s claims on the basis of the Brussels Regulation 1215/2012 (paras 215-225); and

• alternatively, if necessary domestic rules on service conferred international jurisdiction (paras 226-230).

CNN appealed this decision to the EAT.

Legal

background

The term ‘jurisdiction’ is commonly used in reference to three distinct legal questions. As Langstaff J, then President of the EAT, emphasised in Simpson at para 5, a distinction must be made between three matters:

PARAS GORASIA and FINNIAN CLARKE, Old Square Chambers and Doughty Street Chambers

Territorial and international jurisdiction after CNN v Bhatti ‘for those who both live and work abroad, a higher threshold is imposed’

‘(a) the territorial scope of a domestic statute;

(b) the applicable law relating to a contract or tort [including a statutory tort like discrimination];

The first question, of territorial scope, essentially requires asking whether Parliament intended a given claimant’s case to fall within its ‘legislative grasp’. As to the third question of ‘forum’, this asks whether a court or tribunal has jurisdiction to hear a case at all, or whether it should be heard in a foreign court. This question is often referred to as ‘international jurisdiction’. The second question, of applicable law, was not in issue in Bhatti and will not be discussed further in this article.

Territorial jurisdiction

The principal employment and equality statutes are silent as to their territorial scope. It has therefore been left to the courts to determine when a case can be said to fall within their legislative grasp.

The general rule is that a worker must be working in Great Britain for rights under the Employment Rights Act 1996 (ERA) and Equality Act 2010 (EqA) to be afforded to them (Lawson (paras 25-27)). But where the place of work is not Great Britain, an exception to the general position can be made where ‘the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that s.94(1) should apply to them’, Ravat (para 28).

For those who both live and work abroad, a higher threshold is imposed. As set out by Lady Hale in Duncombe, such workers must show ‘that the employment [has] much stronger connections both with Great Britain and with British employment law than with any other system of law’ (para 9).

Lord Hoffmann in Lawson set out some categories which were described in subsequent cases as ‘examples’ illustrating these wider principles (see Duncombe, para 3). He explained how the courts should approach the question of territorial jurisdiction in each of them (paras 25-39).

Somewhat confusingly, while territorial jurisdiction itself is described as a question of law (Lawson, paras 28, 34), the central assessments from which the question of such jurisdiction is determined are variously described as evaluative judgments, questions of fact and degree and questions of fact proper in the authorities (Lawson, para 34, Mulumba, para 45 and Ravat, paras 28-29). This is a point on which the clarification of the EAT was needed.

International jurisdiction

Prior to Brexit, cases involving EU-domiciled businesses were governed by the Brussels Regulation. In summary, while the general rule was that such businesses had to be sued in their place of domicile (Article 2(1)), the Regulation also permitted workers to sue employers in the place of their habitual work (Article 21)(1)). Importantly, the Regulation can also grant jurisdiction in a situation where a respondent is not domiciled in an EU Member State. Article 21(2) provides that ‘an employer not domiciled in a Member State may be sued in a court of a Member State where the employee habitually works’.

The Regulation uses its own definition of domicile for these purposes. Article 20(2) provides that where ‘an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State’.

A question that has previously received scant attention is what role the Regulation could play in cases where an employer was not domiciled in the EU, and what domestic principles would apply if it had no application. This was, again, a point on which the clarification of the EAT was needed.

Territorial and international jurisdiction after CNN v Bhatti ‘whether an employee is a peripatetic worker, and where they are “based”, are questions of fact and degree'

The EAT judgment

Territorial

jurisdiction

Kerr J held that while the question of territorial jurisdiction overall was a question of law, the categorisation of the claimant’s employment pursuant to Lord Hoffmann’s categories was not (para 39). For example, whether an employee is a peripatetic worker, and where they are ‘based’, are questions of fact and degree (para 41).

Although there had been an insufficient connection with Great Britain until 1 March 2017, it was open to the tribunal to find that the fact that the claimant came to the UK to recover from injury during that period shifted the dial, given in particular that the claimant had effectively given up her base in Bangkok at this time (paras 43-49). The findings of the tribunal on territorial jurisdiction were therefore unimpeachable.

International jurisdiction

Klimov EJ found that ss.23 and 111 ERA, s.120 EqA and reg 30 of the Working Time Regulations 1998 conferred international jurisdiction once territorial jurisdiction was established: each provided that claims under their respective acts would be determined in the tribunal. CNN argued that this was wrong: international jurisdiction was a question of private international law that was entirely separate from the question of territorial jurisdiction. Kerr J disagreed, and held that ‘domestic statutes which have territorial application to a claim do themselves confer international jurisdiction, but only if that jurisdiction is not displaced by the Brussels Regulation or some other principle of private international law with force equal to that of primary domestic legislation’ (para 65, emphasis added).

In this context, the Brussels Regulation could only help the claimant, not take jurisdiction from her (paras 67 to 71).

Kerr J settled the longstanding dispute of whether rule 8 of the Employment Tribunal Rules of Procedure 2013 could grant international jurisdiction where Brussels did not apply. He concluded that it could not (para 75). This jurisdiction could not be conferred by a procedure rule, and there had to be some alternative basis for such (para 76). We note that, in practice, it is difficult to see how this will matter going forwards for claimants, who will now gain international jurisdiction simply by virtue of establishing territorial jurisdiction pursuant to Kerr J’s findings at paras 67-71, unless some provision equivalent to Brussels comes along to deprive them of it.

In the event, however, Brussels served to grant the claimant alternative bases of international jurisdiction. Klimov EJ’s findings on habitual working were unimpeachable for much the same reasons as his findings on territorial jurisdiction had been (para 84). Furthermore, contrary to CNN’s argument that a company with separate legal personality could not, in EU law, constitute a ‘branch, agency or other establishment’, the authoritative position of the CJEU in Sar Schotte was that it could (para 92).

Finally, Klimov EJ had found that an alternative basis for international jurisdiction was that CNN had been served with the claim form. CNN argued that the silence of the tribunal’s rules of procedure on service outside the jurisdiction meant that the old common law rules had to be applied instead. Kerr J agreed with the claimant that there was no requirement for leave to serve out of the jurisdiction and no provision that service of a foreign domiciled respondent abroad is other than effective (para 102). CNN had become aware of the claim and that was sufficient, (para 106).

Comment

Perhaps the point of greatest importance in this significant judgment is the one made at para 67: where territorial jurisdiction is made out, international jurisdiction will be too, unless some rule equivalent to primary legislation ousts it. In practice, it is difficult to see what kind of rule would be capable of having this ousting effect. In the post-Brexit world therefore, workers will benefit from a relatively simplified system. In cases with a foreign element, they must show that their employment had a sufficient connection with the UK. Where they demonstrate this, territorial jurisdiction will be made out and international jurisdiction will simply follow.

Territorial and international jurisdiction after CNN v Bhatti

‘in cases with a foreign element, they must show that their employment had a sufficient connection with the UK’

The authors, Paras Gorasia and Finnian Clarke, acted for the successful respondent (Ms Bhatti) in the EAT.

KEY:

Bhatti CNN v Bhatti [2025] EAT 63

Employment Employment Tribunal Rules of Tribunal Rules Procedure 2024 of Procedure (SI 2024/1155)

Brussels Regulation 1215/2012 on jurisdiction

Regulation and the recognition and enforcement 1215/2012 of judgments in civil and commercial matters [2012] OJ L351/1

Simpson Simpson v Intralinks Ltd [2012] ICR 1343

ERA Employment Rights Act 1996

EqA Equality Act 2010

Lawson Lawson v Serco Ltd [2006] UKHL 3, [2006] ICR 250

Ravat Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1, [2012] SC (UKSC) 265

Duncombe Duncombe v Secretary of State for Children Schools and Families [2011] UKSC 36, [2011] ICR 1312

Mulumba Partners Group (UK) Ltd v Mulumba [2021] ICR 1501

Working Time Working Time Regulations 1998 Regulations 1998 (SI 1998/1833)

Employment Employment Tribunal (Constitution Tribunal Rules of and Rules of Procedure) Regulations Procedure 2013 2013 (SI 2013/1237)

Sar Schotte Sar Schotte GmbH v Parfums Rothschild Sàrl [1989] ECC 431

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