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_Introduction

In a landmark ruling, the Supreme Court has confirmed that under the Equality Act 2010, the terms “man” and “woman” refer to biological sex.

This decision comes with serious implications for inclusivity at work. The eligibility criteria for Neonatal Care (Leave and Pay) Act have now been confirmed, aligning with other family-friendly rights, with pay entitlement matching statutory family payments for employees with at least 26 weeks’ service.

Lastly, for this month’s case law we review Higgs v Farmor’s School, where the Court of Appeal ruled that dismissing someone for expressing a protected belief is unlawful unless the response is proportionate.

New and updated legislation

The definition of gender (Equality Act) updates
Neonatal Care Leave Act updates
Code of Practice on Dismissal and Re-engagement

We hope you find your legislation book useful!

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_{The definition of gender (Equality Act)}

The Supreme Court was asked to consider the definition of gender in the Equality Act (EqA) and it delivered its highly publicised verdict on 23 May 2025.

By reviewing the Sex Discrimination Act 1975, the first legislation to protect against sex discrimination, they found that it was drafted based on the words "man" and "woman" referring to biological sex. At no stage during any of its amendments or updates was it found that this meaning had been modified.

Their judgment was based on utilising the ordinary language of “man” and “woman” and as such, it could only be Interpreted as referring to biological sex.

The Supreme Court was clear that the meaning of "sex" and "woman" must be

consistent throughout the EqA and cannot have one meaning in one section and another in a different section.

To allow this would render the legislation impracticable and unfit for purpose. We therefore appear to have judicial clarity following many years of uncertainty and hesitation regarding this topic.

It provides welcome relief for employers, who were ordinarily required to provide a balancing act between the disparity in rights and to determine what is correct, without having the legal standing to do so.

It should be mentioned, as it was emphasised in the judgment, that this does not represent an erosion of the rights afforded to trans people.

They are protected from discrimination on the ground of gender reassignment. Further, they are also able to invoke the provision on direct discrimination and harassment, and indirect discrimination based on sex.

A trans woman can claim sex discrimination because she is perceived to be a woman – without the need to discuss the definition of sex.

Standing with your trans employees

Learn how to support your trans employees with care, respect and understanding following the Supreme Court ruling.

READ NOW

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The update also addresses implications for competitive sports, schools, and associations.

The CIPD advises organisations to review their facilities to ensure compliance and to support employees through these changes.

The EHRC released its interim update on the Supreme Court ruling's practical implications, stating that "many people have questions about the judgment and what it means for them."

However, this update has been criticised by TransLucent, a prominent UK trans rights group, which argues that the EHRC's guidance, particularly regarding single-sex spaces, is harmful to trans people and could lead to discrimination.

By reviewing the Sex Discrimination Act 1975, the first legislation to protect against sex discrimination, they found that it was drafted based on the words "man" and "woman" referring to biological sex.

At no stage during any of its amendments or updates was it found that this meaning had been modified.

Their judgment was based on utilising the ordinary language of “man” and “woman” and as such, it could only be interpreted as referring to biological sex.

TransLucent is also concerned that comments made by the EHRC's chair and a commissioner on social media and to the press have compromised the upcoming consultation process.

The organisation claims these comments have caused significant distress to the trans community and confusion among service providers and employers.

They argue that these statements indicate a closed-minded approach before consulting trans communities and other affected groups, and that the EHRC seems to have overlooked the fact that trans people are still protected under the Equality Act.

The EHRC maintains that its goal is to provide clarity and protect everyone's rights, including those of trans people, and denies that its guidance excludes or harms trans individuals. They emphasise that their guidance is intended to help service providers comply with the law and that they are committed to fulfilling their statutory role.

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The Equality and Human Rights Commission (EHRC) released an interim update on 25 April 2025. Key points include:

A ‘woman’ is a biological woman or girl (a person born female)
A ‘man’ is a biological man or boy (a person born male)
If somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC)
A trans woman is a biological man
A trans man is a biological woman

The EHRC interim update further states:

"In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.

In workplaces and services that are open to the public:

Trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex.
In some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans

trans men (biological woman) not to be permitted to use the women’s facilities.

However, where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use.
Where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided.
Where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men”.

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_{Neonatal Care (Leave and Pay) Act}

The Neonatal Care (Leave and Pay) Act is now in effect. The act creates a statutory right for parents whose child is receiving neonatal care to take paid leave of up to 12 weeks.

This is in addition to any other parental and maternity rights to leave and pay. It applies where a baby receives neonatal care for more than 7 days in a row in the first 28 days of life.

During neonatal care leave, eligible employees will retain the benefit of their terms and conditions of employment (excluding remuneration) which would have been applied if it wasn't for the absence and remain bound by any obligations arising from the same.

They also retain the right to return to a job of a prescribed kind and enjoy the same protection as that afforded to parents exercising other family friendly entitlements (i.e. not to be subject to a detriment or discrimination arising from them taking, or seeking to take, neonatal care leave).

‘Neonatal Care’ is considered to mean medical or palliative care starting before the end of 28 days beginning the day after the date of the child’s birth.

The criteria for this right mirrors the conditions in place for other family friendly entitlements, with neonatal pay aligning with other statutory payments for employees with 26 weeks service.

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The rules and notice requirements, however, have been widely criticised for being overcomplicated.

Although, it's important to note that employers and employees can agree to waive the statutory notice required.

There are two categories of statutory neonatal care leave depending on when the employee takes the leave: Tier 1 period leave and tier 2 period leave.

Tier 1 period leave

Eligibility is only granted once the baby has received at least 7 consecutive days in neonatal care. This Tier 1 period starts from day 8 of care and can continue for up to one week after

discharge (or when neonatal care ends, if sooner).

Tier 1 leave can be taken in non-continuous blocks of a minimum of one week at a time, for up to 12 weeks.

The notice period for leave must be given before an employee is due to start work on the first day of absence or if this is not possible, notice must be given as soon as reasonably practicable.

The notice period for pay must be given within 28 days from the first day of leave in which the period relates to or if this is not possible notice should be given as soon as reasonably practicable. For tier 1 leave notice does not need to be in writing.

Tier 2 period leave

This applies to leave taken after the tier 1 period ends and must be taken in one continuous block. It ends 68 weeks after the child’s birth.

Notice period for leave and pay

For a single week of leave and pay, written notice is required at least 15 days before the first day of neonatal care leave.

For two or more weeks of leave and pay, written notice is required at least 28 days before the first day of leave in which the period it relates to.

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_{Dismissal and Re-engagement}

The Statutory Code of Practice on Dismissal and Re-engagement, known as ‘fire and rehire,’ has been in force since 18 July 2024.

Dismissal and re-engagement is the practice of forcibly changing terms and conditions by dismissing the employee and re-engaging them on the new terms.

While the Employment Rights Bill aims to strengthen the rules by making it “automatically unfair” unless the employer can demonstrate no alternative, the current provisions remain in place.

The code sets out the principles it expects employers to follow and encourages a greater level of consultation. It also states that when issuing the new terms to an employee, the only terms that should be

changed are those which the employee has been consulted about. No other changes should be made.

From 20 January 2025, employers have been required to adhere to the Code, in addition to existing consultation requirements, for redundancies involving 20 or more dismissals.

Employment tribunals can apply an uplift of up to 25% to an employee’s compensation if an employer unreasonably fails to comply with the Code where it applies.

Consultation on the code commenced on 2 December 2024, and the outcome was published in March 2025. It resulted in a decision to increase the maximum protective award for collective redundancy from 90 to 180 days' pay, but not to introduce interim relief as a remedy.

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_{Worker Protection (Amendment of Equality 2010) Act}

The Equality and Human Rights Commission (EHRC) issued technical guidance for employers following the enactment of the Worker Protection (Amendment of Equality Act 2010) Act that came into effect on 26 October 2024.

This Act introduced a new legal duty for employers to take reasonable steps to prevent sexual harassment of their workers, known as the ‘preventative duty’. Previously, there was no proactive legal obligation for employers to prevent sexual harassment at work.

Given the significant impact sexual harassment can have on an individual’s career, mental, and physical health, it was found that employers were not adequately addressing these concerns. The updated law

is a welcome addition in the fight against sexual harassment.

The Act also allows for increased compensation in sexual harassment claims. If an employment tribunal finds that a worker has been sexually harassed, it must consider whether the preventative duty was met. If not, the employer can be ordered to pay up to an additional 25% in compensation.

The legislation also empowers the EHRC to take enforcement action against organisations that fail to take reasonable steps to prevent sexual harassment, regardless of whether an incident has occurred.

The law doesn't outline specific steps that employers must take, allowing for flexibility in how each organisation addresses the issue.

However, recent guidance highlights the importance of conducting a risk assessment and reinforces that all employers are obligated to take action – no organisation is exempt from this preventative duty. The new guidelines emphasise preventing sexual harassment from any perpetrator, whether a colleague or a third-party contractor.

And the responsibility on employers is going to increase. The previous legislation was “watered down” to “reasonable steps” from the initial suggestion of “all reasonable steps”. But with the Employment Rights Bill, the obligation will become a duty to take "all" reasonable steps”. Regulations will specify the steps that employers should take, such as carrying out risk assessments and implementing harassment policies and complaints procedures.

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The bill has also indicated that:

A complaint of sexual harassment at work will be treated as a protected disclosure under whistleblowing legislation.

This may limit the effectiveness of confidentiality provisions in settlement agreements, as it is not possible to prevent a worker from making whistleblowing disclosures.
Employers will be liable for harassment (of any kind) by third parties, such as clients or suppliers, unless they take reasonable steps to prevent it.

Employers will need to ensure that they have measures in place, such as appropriate wording in contracts with clients and suppliers.

While not exhaustive, implementing these steps can help you take positive action:

Develop an effective anti-harassment policy and engage your staff.
Assess and mitigate risks in your workplace by conducting risk assessments.
Establish reporting mechanisms, ensuring all employees are aware of, and feel comfortable using them.
Provide regular training to all, including management training on how to deal with complaints of sexual harassment.
Respond appropriately to harassment complaints and investigate thoroughly.
Address harassment by third parties.
Monitor and evaluate your actions.

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_{Amended Employment Rights Bill makes progress}

The Employment Rights Bill is progressing towards becoming law after its introduction in Parliament on 10 October 2024.

The Bill was amended following the completion of the committee stage in the House of Commons.

One of the most significant changes for employers is the Government's proposal to extend the time limit for Employment Tribunal claims from three months to six months.

Currently, most claims, including those for unfair dismissal, must be submitted within three months. If this change becomes law, it could have a broad impact on businesses, as claimants will have more time to decide whether to pursue a claim.

Additionally, it’s worth noting that on average, once a claim is submitted, it can take up to a year or more for the case to be heard at an Employment Tribunal.

If the time limit for bringing a claim is extended to six months, there runs a risk that the waiting time for hearings could increase further. This could result in challenges, such as witnesses' memories fading over time, which may affect the outcome of the case.

With these proposed changes, employers will need to consider the broader implications for workforce management, risk mitigation, and HR processes.

However, the extension of tribunal time limits is just one of several significant updates to the Employment Rights Bill.

Since its initial release as a 153-page document, the Employment Rights Bill has seen many changes. Here are some of the most notable amendments that could reshape employer responsibilities moving forward.

Definition of the ‘initial period of employment’

The "day one" right for unfair dismissal will apply to an employment period of 3 to 9 months, with exact details to be defined in future regulations.

Provisions for workers without guaranteed hours

New rules clarify payments for shifts cancelled, moved, or reduced at short notice. Tribunals will have discretion over awards based on the seriousness of the situation.

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Extending the definition of “matters related to gender equality”

The definition now includes menstrual problems and disorders. Employers may be required to create equality action plans under separate regulations.

Trade union access to workplaces

This right is clarified as not applying to workplaces that are also dwellings.

Non-Disclosure Agreements (NDAs)

A proposed clause would render NDAs null and void if they prevent workers from disclosing harassment, including sexual harassment.

And the changes continue

Amongst many ongoing issues related to the Employment Rights Bill and one many may have missed is its proposal to allow

independent HR consultants, certified by the CIPD to advise and sign off on settlement agreements.

Currently, settlement agreements are only valid if the employee receives advice from a qualified lawyer, certified trade union official or certified and authorised adviser from an advice centre.

The CIPD is now urging policymakers to grant formal recognition to help resolve workplace disputes more quickly, cost effectively and accessibly.

The amendment will be considered as the bill is debated in the House of Lords.

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_{Workplace standards for menopause and menstruation}

Menopause remains a critical topic. The Employment Rights Bill includes provisions to enhance workplace support for women experiencing menopause.

This may include flexible working arrangements or comfortable working environments, such as cooling systems, quiet rooms, and more flexibility in uniform requirements.

This legislation will also require larger employers (over 250 employees) to develop and publish menopause action plans and will provide guidance for smaller employers to adapt workplaces.

In the meantime, the guidance from the British Standards Institute (BSI), ‘BS 30416, Menstruation, Menstrual Health and Menopause in the Workplace,’ remains a

valuable resource for employers.

This guidance highlights the challenges, symptoms, and experiences associated with menopause and menstrual health, offering practical insights into how these can impact women in the workplace.

BS 30416 is a free, practical toolkit for businesses of all sizes and sectors. Developed by experts in the field of menstruation, menopause and occupational health and academics, it aims to help organisations identify the misconceptions around menstruation and menopause.

It also identifies the impact of stigma surrounding these topics on workplace cultures and support. The standard helps businesses to take action to make their workplace more inclusive.

It contains examples of actions and adjustments that can improve employees’ wellbeing.

Examples include:

Physical aspects of work
Policy guidance and practices
Supportive workplace cultures
Work design
Inclusivity
Evaluation and metrics

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_{The Office of the Whistleblower Bill}

This bill was put forward to parliament in December 2024.
It proposes to establish an independent Office of the Whistleblower to protect whistleblowers.

It will set, monitor and enforce standards for the management of whistleblowing cases, provide disclosure and advice services, direct whistleblowing investigations, and order redress of detriment suffered by whistleblowers.

By having this office in place, the Bill also proposes that it will be a designated body to which people can report when they have made a disclosure. The Bill will need to go through the full parliamentary process before becoming law.

The Court of Appeal is considering whether whistleblowing protections should be extended to apply to external job applicants.

The legal challenge has been raised by the whistleblowing charity ‘Protect’, which has filed a third-party intervention at the Court of Appeal after it was given permission to intervene in the case.

The current scope of whistleblowing law doesn't cover external job applicants other than those applying to the NHS, who are protected by the Employment Rights Act 1996 if they make a protected disclosure.

Protect highlights that job applicants who blow the whistle risk being blacklisted and can be effectively excluded from working in their chosen field.

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_{The growing role of AI in HR}

The increasing use of AI in HR continues to be a hot topic.

Concerns about bias in recruitment persist, and companies like Starbucks have found that increasing technology at the expense of human labour did not deliver the same customer experience.

This raises the question: is a collaboration between AI and human beings the way forward?

The fear that AI will replace human interaction, lead to discrimination, and ultimately eliminate jobs remains prevalent.

However, is this fear justified? Historical examples, such as the well-publicised failure of Amazon's recruitment algorithm, suggest caution.

Amazon's AI system, designed to streamline hiring, was found to be biased against women. Trained on a decade's worth of resumes, predominantly from male candidates, the algorithm downgraded resumes with terms associated with women, leading to the project's termination.

Despite these challenges, AI offers significant opportunities in HR, including recruitment, performance reviews, employee engagement, and talent development.

However, the risks cannot be ignored. AI systems learn from historical data, which may contain human biases.

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If the training data is biased, the AI system can perpetuate and even amplify these biases, increasing the risk of discrimination claims from prospective, current, and former employees. AI is only as good as the information it is given.

Collaboration between AI and human beings is now seen as the way forward. Recent surveys indicate that 80% of HR leaders believe that within five years, most workforces will have humans and AI working alongside each other.

Current thinking is that human oversight is essential to ensure that AI decisions are fair and ethical. HR professionals must regularly review and adjust AI algorithms to prevent bias and ensure transparency. This collaborative approach helps maintain

a balance between efficiency and fairness in HR processes.

It is also important to recognise that people learn best by doing, not by passively absorbing information. To reduce fear and apprehension among employees, employers are encouraged not only to offer AI training but also to create hands-on spaces where employees can safely explore and experiment with AI tools.

This approach fosters a better understanding of AI and its potential, helping to integrate technology in a way that complements human skills and insights.

Case law

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_{Hewston v Ofsted}

This case revolves around the basic principles of unfair dismissal under the Employment Rights Act 1996, specifically Section 94, which protects employees from unfair dismissal.

In addition to deciding if a dismissal was for one of five fair reasons, a tribunal must also decide whether the dismissal was fair in all the circumstances of the case.

When considering a conduct dismissal, it will need to decide whether dismissal fell within the “range of reasonable responses” open to a reasonable employer.

The legal process

The Court of Appeal decision of 15 March 2025 follows a six-year process. Mr. Hewston was dismissed on 21 November 2019. His claims of wrongful dismissal and unfair dismissal were rejected by an Employment Tribunal on 17 December 2021.

However, the Employment Appeal Tribunal (EAT) overturned this decision on 4 August 2023, finding the dismissal to be both substantively and procedurally unfair.

This case highlights the lengthy and complex nature of legal proceedings and underscores the importance of employers considering early settlement to avoid prolonged legal battles.

Reasonable negotiations and settlements can often be more cost-effective and less stressful than pursuing litigation on principle.

A “judgment” is precisely that, a “judgment” and can be overturned, while the desire for justice and principles are important many barristers and advocates will advise that “principles are expensive”.

The facts

Mr. Hewston was a senior inspector at Ofsted with over 12 years of service and a clean disciplinary record. He was summarily dismissed for gross misconduct following an incident during a routine school inspection.

Mr. Hewston brushed rainwater off the head of a Year 8 pupil and lightly touched the top of his shoulder, asking if he was okay.

This was described as ‘a friendly act of sympathy and assistance’, a gesture he believed entirely appropriate in the context.

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The school lodged a complaint with Ofsted and the Local Authority Designated Safeguarding Officer (LADO). It asserted that the physical contact was inappropriate.

The LADO reviewed the matter and advised Ofsted to investigate, potentially with a view to offering further training.

Ofsted conducted an internal investigation and decided to dismiss Mr. Hewston, citing a lack of professional judgment, loss of trust and confidence, and a failure to acknowledge the inappropriateness of his conduct.

It also said that Mr Hewston had brought the organisation into disrepute.

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The decision

The Court of Appeal upheld the EAT’s decision that Mr. Hewston's dismissal was unfair.

Key points from the judgment include:

Key documents, such as the Local Authority Designated Officer (LADO) report, the school’s complaint, and the pupil's written account, were not provided to Mr Hewston prior to the dismissal decision.
Absence of a 'no touch' policy meant that Mr. Hewston had no reasonable expectation that his actions would lead to dismissal.
The dismissal was deemed unfair due to the lack of clear guidance and the procedural deficiencies in the disciplinary process.

Mr Hewston’s willingness to say he would not repeat the conduct, and to undertake training, was a sufficient and appropriate response, regardless of whether he fully accepted wrongdoing.

It could never be reasonable for an employer to bump-up the seriousness of conduct, not itself capable of justifying dismissal because an employee failed to show proper contrition or insight.
The reliance on a loss of trust and confidence cannot justify dismissal for misconduct unless the employee’s conduct was sufficiently serious to justify such a loss. Reputational harm alone cannot be a stand-alone basis for dismissal without some misconduct.