Recent updates on sex discrimination and harassment case law

In the last couple of years, there have been several Tribunal cases surrounding sex, gender reassignment, and access to single-sex facilities in the workplace.

Many of these cases refer back to the case of For Women Scotland Ltd v The Scottish Ministers, in which the Supreme Court determined that the term “sex” within the Equality Act 2010 referred to biological sex, and that references to “men” and “women” must be interpreted based on biological sex.

Hutchinson and others v County Durham and Darlington NHS Foundation Trust
In the case of Hutchinson and others v County Durham and Darlington NHS Foundation Trust, female employees brought claims of discrimination after the Trust failed to address their concerns around a policy which permitted transitioning employees to use changing rooms in line with their self-declared gender identity.

Based on the For Women Scotland case, the Tribunal determined that requiring female employees to share a changing room with a biological male trans woman, and failing to address the women’s concerns, amounted to harassment relating to sex and gender reassignment.

Their claims of indirect sex discrimination were also successful.

By allowing access to single-sex changing rooms based on self-declared gender identity, and by prioritising the perceived rights of transgender employees over the rights of other employees, it was found that this put female employees at a particular disadvantage.

Kelly v Leonardo UK Ltd
Kelly, a female engineer with Leonardo UK Ltd, raised a grievance about the Company policy, which allowed trans staff to use the toilet facilities of their asserted gender identity.

Kelly argued that the views of those who believe in gender identity theory were placed above those with gender-critical views, and that this disadvantaged women.

However, Kelly’s grievance and appeal were not upheld, and she then raised a Tribunal claim for harassment related to sex, direct and indirect sex discrimination, and a breach of rights under Article 8 of the European Convention of Human Rights.

Kelly’s claims were unsuccessful.

The Tribunal acknowledged that the employer had met the 1992 Regulations by providing sufficient female-only and unisex single-occupancy facilities.

The Tribunal therefore disagreed that the policy placed women at a particular disadvantage, and made note that Kelly continued to use the female toilets without issue.

Peggie v Fife Health Board
Peggie was a staff nurse at the Kirkcaldy Hospital A & E department who raised a complaint to the Hospital when a trans woman Doctor used the female changing room.

The Hospital argued that the Doctor was entitled to do so.

However, following an argument in the female changing room, the Doctor raised a complaint of harassment against Peggie.

Peggie was suspended, but the evidence in the subsequent disciplinary hearing was inconclusive, and Peggie then raised a Tribunal claim for harassment relating to sex and religion or belief, as well as direct and indirect sex discrimination, and victimisation.

The Tribunal denied most of the claims around discrimination and victimisation; they agreed that it was lawful for the Doctor to use the women’s changing room.

However, the claim of harassment related to sex was successful, due to the failure of the Hospital to work out a temporary solution while dealing with Peggie’s complaint, and in how some parts of the disciplinary process against Peggie were managed.

These cases all highlight the importance of how employers balance gender reassignment rights, sex-based privacy and dignity rights, and health and safety obligations.

They also show the importance of context, such as whether there are communal or single-occupancy facilities, whether complaints were handled appropriately, and whether reasonable interim steps were taken.

If you would like to review how your business manages workplace facilities, complaints, and harassment risks, contact us for support with policy reviews, manager guidance, and practical steps to reduce legal exposure.

Due to come into effect in January 2027

The Employment Rights Act brings significant change to unfair dismissal law with effect from 1st January 2027.

These changes will place major operational and financial implications for employers, particularly in how probationary periods are managed.

The two main reforms that are due to take place from the 1st January 2027 are as follows:

• The current cap on unfair dismissal compensation (the lower of 52 weeks’ salary or a capped £118,223) will be removed, meaning that a statutory maximum will no longer limit compensatory awards.
• There will be a six-month qualifying period for ordinary unfair dismissal protection. This means that from 1st January 2027, employees with six months’ service will automatically gain unfair dismissal protection from that date, and those with less than six months’ service as of the 1st January 2027 will receive protection once they reach the six-month mark.

We recommend that, from the 1st July 2026, contracts and probation policies be amended to effect these changes, introducing a three-month probation period with the possibility of extending for up to three months.

Contracts, disciplinary, and capability procedures should also be reviewed to remove any limiting processes within the first twenty-four months.

Processes for onboarding and probationary reviews should be reviewed to ensure they can address any issues (performance or otherwise) that arise early on, and managers should receive training on the new rights and requirements to ensure probations, extensions, and potential terminations are managed robustly.

If you are reviewing how managers handle probation and early dismissal decisions ahead of the April 2026 changes, contact Solutions for HR for support with process updates and documentation.

Redundancy and restructuring are different concepts, where redundancy has clear negative connotations, while the other can be seen as more strategic, and thus more positively framed.

As a result, employers may often try to refer to redundancies as a restructure.

However, there are clear legal distinctions between these two concepts.

Redundancy occurs when an employee’s role is no longer needed within the business, which can be a result of the closing of the business or the closing of a specific location, or even as a result of a restructure within the business.

On the other hand, restructuring refers to changes in an organisation’s structure or processes, with the aim of making the business more efficient.

And with this process, there may not be the need for any job losses within the business.

Redundancy is recognised as one of the five potentially fair reasons for dismissal, whereas restructures can sometimes fall under another of the five fair reasons, such as Some Other Substantial Reason (SOSR), although this is not always the case. However, as mentioned above, restructuring can also lead to redundancy.

Another difference is that, with redundancy, employees would be entitled to receive statutory redundancy pay if they have at least two years’ continuous service, whereas someone subject to a SOSR dismissal as a result of a restructure may only receive notice pay.

Employers are therefore advised to be cautious when applying a restructure or redundancy process, and to ensure that they are following the correct procedure, as there can be risks involved in applying the wrong process.

If you are planning changes to roles or team structures and want to avoid using the wrong process, contact Solutions for HR for practical support with the right approach and documentation.

In the case of Marshall v McPherson Limited, Marshall was a night-shift HGV driver working for the large haulage company, McPherson Limited.

After McPherson Limited introduced a new workplace system in May 2023, Marshall was feeling increasing pressure at work.

Marshall was struggling to cover his workload and felt unable to take breaks.

Marshall went to the Company about these issues.

They failed to act or make a record of these issues.

And when the Company later sent a colleague to accompany Marshall on his shift, they failed to give Marshall any warning of this happening in advance.

Marshall went on to arrange a meeting with the Company about this, and other events, some of which dated as far back as 2017.

The Company offered Marshall a temporary transfer.

Marshall declined on the basis that the Company was ignoring his complaints, and, in response, the Company claimed that Marshall would remain unpaid for refusing this offer.

In addition, the Company had previously failed to complete a risk assessment and make a record of existing incidents.

Marshall later also discovered that a day-shift driver had been allowed to ask other drivers for support and take breaks, when this hadn’t been possible for Marshall.

As a result, Marshall resigned and claimed constructive dismissal.

The Employment Tribunal (ET) initially dismissed Marshall’s claim on the basis that the “last straw” was not repudiatory in nature.

On appeal, the Employment Appeal Tribunal (EAT) stated that the “last straw” did not solely need to be a serious breach, and the overall pattern of behaviour is what mattered.

The EAT said that the ET failed to apply the 5-stage test from Kaur v Leeds Teaching Hospital NHS Trust when considering the “last straw” that led to Marshall’s resignation and claim.

The 5-stage test is as follows:

1. What was the most recent act/omission by the employer that led to the employee’s resignation?
2. Has the employee affirmed the contract since this act/omission?
3. If not, was the act/omission a repudiatory breach of contract?
4. If not, was it part of a course of conduct involving various acts/omissions, which would jointly amount to a breach of trust and confidence?
5. Did the employee resign in response to that breach?

Based on this, the EAT agreed with Marshall’s claim, stating that the “last straw” was part of a course of conduct which led to a breach of trust and confidence, and resulted in Marshall’s resignation.

The case has since been sent back to the ET to be reheard.

Employers should therefore ensure they deal with all employee concerns appropriately and transparently.

A single event can be large enough to justify resignation. Still, equally, employees can also draw on a pattern of behaviour, including minor incidents, which may lead to a breach of contract.

If an employee has raised repeated concerns or you are worried a situation is escalating, contact Solutions for HR for practical advice on next steps and how to protect the business.

Whilst fun and festive, as the alcohol flows, inhibitions fall and the risk of someone doing or saying something inappropriate increases.

From embarrassing photos posted on social media to drunken fights and allegations of sexual harassment, the office Christmas party presents a myriad of HR challenges.

To make sure everything goes smoothly, you should be clear about your behaviour expectations.

The new duties to prevent sexual harassment make this even more important this year, so what should employers be thinking about pre-Christmas do?

Set behavioural expectations ahead of the party.

Send out an email or memo pre-event to set out your expectations on professional behaviour and conduct, and remind staff that whilst this is a social “do”, it is a company event and your usual standards of workplace behaviour apply.

Employees should also be reminded of how they can report sexual harassment and inappropriate behaviour under the relevant policies to ensure that if organisational rules are broken, or a grievance with the organisation itself arises, the affected employee knows how to raise this.

You might want to consider designating a senior person to limit their alcohol intake at the event to have someone fairly compos mentis throughout the occasion and to help with any overindulgence and behaviour issues.

Whilst their role is not to be the “fun police”, they can play an important role in maintaining behavioural standards.

Support staff in making travel plans for when the party ends, reducing the risks of employees getting carried away outside of the event.

A reminder of your bullying and harassment and social media policies is essential, and to prevent other issues, make sure that you consider all your responsibilities to your staff.

It’s important to ensure the event is inclusive to all, so should your event centre entirely on alcohol?

Whilst many of us like a festive tipple, be sure to provide non-alcoholic drinks, plenty of water and menu options that cater to all dietary requirements.

Inclusivity doesn’t stop at food and drinks either.

Be sure to invite all staff members, even the ones who are absent due to long-term sickness, maternity leave, etc.

No one wants to feel like they’ve been sidelined or forgotten, especially during the holiday season!

But remember, HR is about striking a balance.

We don’t want to be fully “Baa humbug”!

We want our teams to enjoy the festive spirit during December whilst maintaining that professionalism.

We can only do that with clear communication of standards and expectations.

And should unacceptable behaviour occur, appropriate action should be taken following a full investigation.

This includes, if appropriate, disciplinary action.

Employees who have experienced sexual harassment should be offered support, such as by signposting them to any Employee Assistance Programme (EAP) that’s in place.

Ask us to review your bullying, harassment and social media policies before invitations go out. Contact our team.

On the 14th of October 2025, the UK government released a statement of changes to the Immigration Rules.

The main changes are as follows:

Increased English language requirement

From the 8th of January 2026, applicants entering as a skilled worker or through a “high potential individual” (HPI) or “scale-up” route must meet a higher English language standard equivalent to an A-Level.

This represents a step up from the current GCSE level requirement.

Existing skilled workers who entered the route before the 8th of January 2026, and later extended their visas, will not need to meet the higher language standard.

The government has also indicated that English language requirements for dependants of sponsored workers may be introduced in the future.

Immigration skills charge (ISC) increase

The immigration skills charge, payable by employers sponsoring workers under the Skilled Worker route, will increase by 32% from the 16th of December 2025.

The ISC for medium to large sponsors will rise from £1,000 to £1,320 per worker per year.

The fee remains mandatory and cannot be passed on to or recovered from the sponsored employee.

Graduate visa duration reduced

From the 1st of January 2027, the graduate visa will be reduced from 2 years to 18 months for degree holders.

PhD graduates will continue to qualify for a 3-year visa.

Graduates completing studies in 2026 will still be eligible for the current 2-year visa.

Contact our HR and employment experts to discuss how the 2026 immigration changes could affect your workforce.

Providing reasonable adjustments for employees without a formal diagnosis

In employment law, an employee can be considered as having a disability even if they do not have a formal diagnosis and would therefore be eligible to receive reasonable adjustments.

Typically, it is neurodiverse conditions such as ADHD, autism or dyslexia that present without a formal diagnosis within the workplace.

Individuals may not have a formal diagnosis for several reasons, such as long waiting times within the NHS, excessive costs for diagnosis under private healthcare, or fear of potentially negative reactions from others, including employers.

Under the Equality Act 2010, a person is recognised as having a disability if they have a physical or mental impairment, and the impairment has substantial and long-term (i.e., lasting 12 months or more) negative effects on their ability to carry out normal day-to-day activities.

Therefore, while a formal diagnosis is not needed, an employee would still need to provide evidence that they meet the definition under the Equality Act 2010 to afford protection under the Act.

Where a disability is recognised, such as ADHD, autism or dyslexia, employers should support their employees by providing reasonable adjustments in the workplace.

It is important to note that conditions such as ADHD or autism differ from person to person, and therefore, reasonable adjustments should be approached on an individual basis.

Reasonable adjustments will often focus on supporting an individual in areas such as concentration, communication, time management, balance and/or sensory overload.

This might be achieved by addressing their environment (e.g., providing noise-cancelling headphones, quiet spaces, computer screen filters) or setting up specific processes or software (e.g., regular check-ins, mind-mapping software or other specialist equipment).

Occupational Health reports can also be a useful tool for identifying specific and effective adjustments for an individual.

Where an employer is unsure if a specific adjustment would work or is feasible, it is advised to try it temporarily with the employee first.

What is considered reasonable is based on a number of factors, such as the practicality of the adjustment and the finances and resources available for the employer to implement the change.

It is also advised that employers keep a confidential record of adjustments, whether these were implemented and, if not, why they were not accepted.

The Government’s Access to Work scheme is a useful free support service accessed by employees who have a physical or mental health condition or disability.

For further information, visit Access to Work.

Apprentice with ADHD unsuccessful for claims of unfair dismissal and disability discrimination

The tribunal in the recent case of Forrester Hayes v Scania (Great Britain) Ltd dismissed claims of unfair dismissal and disability discrimination, despite it being argued by Forrester that his alleged misconduct was a result of his ADHD.

Forrester Hayes was employed as an Apprentice Technician in February 2020, working alongside other young apprentices and technicians. It was noted that there was a culture of “banter” and “pranking” between the apprentices.

In February 2021, in retaliation for a prank by Forrester Hayes, a colleague wrapped one of Forrester Hayes’ tools in electrical tape.

In response, Forrester Hayes grabbed and held the colleague before hitting him.

Both were suspended and later issued with a nine-month final written warning.

Wilkinson, who was Forrester Hayes’ manager, stated that this behaviour would’ve normally led to dismissal, but, due to their age and naivety, he would offer them a second chance.

In July 2023, there was another incident where Forrester Hayes’ lunch had been messed with, making it inedible.

In response, Forrester Hayes sent aggressive and threatening messages to colleagues online.

Another colleague had also recorded Forrester Hayes making threats about the person whom he suspected had tampered with his lunch.

Forrester Hayes had reported the incident, but the Company were unable to identify the perpetrator.

However, Scania later became aware of the messages and threats made by Forrester Hayes following the incident.

Forrester Hayes argued that his response to the incident was a result of his ADHD, which the Company was aware of, and he argued that his ADHD made him impulsive and susceptible to feeling intense emotions and frustration.

Forrester Hayes was suspended during disciplinary proceedings and later referred to Occupational Health by the Company, who suggested that his ADHD would not impair his ability to know right from wrong.

Following the disciplinary hearing, Forrester Hayes was dismissed, as it was suggested that the ongoing threats and aggression in response to the incident went beyond an impulsive and reactive response.

Forrester Hayes brought claims of unfair dismissal, breach of contract, disability discrimination, failure to make reasonable adjustments, and disability harassment, which were all dismissed by the tribunal.

The tribunal agreed that, while the messages might have been a consequence of ADHD impulsivity, the dismissal of Forrester Hayes was a proportionate means to protect Scania’s staff.

They also agreed that, given the number of messages sent and the content of these messages, and the other threats made, this suggested that it was not simply a heat-of-the-moment reaction.

This case does suggest that bad behaviour resulting from ADHD may still be subject to disciplinary proceedings, or even dismissal, but there must be a clear process shown by employers, and Occupational Health should be used to assess the impact of any such condition on the behaviours displayed.

In this case, Scania already had a final written warning on file and had consulted with Occupational Health in regard to Forrester Hayes’ ADHD, before conducting the disciplinary.

In March, the Government released the Employment Rights (Increase of Limits) Order 2025, which sets out the new statutory rates for employment tribunal awards, amongst other statutory changes.

With effect from the 6th April 2025, some of the main updates to the statutory rates include:

• The statutory guarantee pay has increased from £38 to £39 per day, up to a maximum of 5 days in each 3-month period (meaning a maximum amount of £195 in a 3-month period).
• The cap for one weeks’ pay for statutory redundancy pay calculations has increased from £700 to £719, meaning the maximum basic award for unfair dismissal at tribunal, and the maximum statutory redundancy pay available, has also increased to £21,570.
• The limit for compensatory awards for unfair dismissal has increased from £115,115 to £118,223.

Further statutory rates for April 2025, including changes to National Minimum Wage, sick pay and family-friendly pay, are available in our employment law key facts form. Click to download a PDF copy.

The £22k risk of not following your internal process

Whilst there is a code of practice for disciplinary dismissals that employers must follow, dismissals for performance reasons do not follow the same code, nor do they have their own code.

So, you may be fooled into thinking that you don’t have to follow any structured procedure for a performance dismissal.

But you would be wrong.

There is still a requirement to follow a fair and reasonable process, and a recent case ruled that despite clear performance issues, a dismissal was unfair as internal procedures, namely providing formal warnings, had not been followed.

Anita Briggs began working as a Digital Media Content Producer at the National Museums of Scotland in June 2009.

Her role involved planning and maintaining content for the museum’s social media and website.

Initially, things were fine and up to 2020 Briggs received fairly positive performance reviews.

In 2021 Briggs got a new line manager, Russell Dornan.

Dornan had concerns with Briggs’ performance and, after meeting with Briggs in May 2022, an informal Performance Improvement Plan (PIP) was put in place to address his concerns around following procedures and attention to detail.

However, Dornan did not see sufficient improvement.

Briggs was dealing with personal circumstances, and so both parties agreed to a second PIP in November 2022, as well as a stress risk assessment.

Dornan noted that, should the second PIP not prove successful, Briggs would be invited to a formal meeting.

Performance did not improve, and between June to August 2023, Briggs only published two pieces of content, and one had undergone significant amendments before issue.

Briggs was then off work with stress in September and part of October, leading other members of the team to pick up her work, including the Head of Digital Media, Hannah Barton.

Dornan left the business, and Barton took over Briggs’ management.

On Briggs’ return to work, Barton confirmed that Briggs had failed to meet the second PIP requirements as there were still errors, missed deadlines and failures to follow processes.

Barton informed Briggs of a third formal PIP process to take place and, if unsuccessful, this could lead to dismissal.

During the third PIP, Briggs continued to provide minimal content; in December she produced six social media posts and a content plan, compared to 73 posts published by a colleague.

A meeting was also held on the 12th December 2023 with Briggs, Barton, a member of HR and a Trade Union representative.

Briggs stated she had no issues with the demands of the role and accepted she was not performing as needed.

She admitted that the main stress for her was the PIP, which was confirmed by another stress risk assessment.

As Briggs failed the third PIP, Barton invited her to attend a formal hearing on the 12th February 2024, chaired by the Director of external relations, Helen Ireland.

The next day Briggs was terminated based on lack of capability.

Briggs appealed the decision on multiple grounds, however, the Director of National Museums Scotland, Chris Breward, upheld the decision to terminate.

At Tribunal it was found that the Museum did not follow their own internal policy which was to provide formal written warnings to Briggs prior to dismissal.

As a result, Briggs was awarded £22,210.75 in compensation.

The key takeaway for employers is that a fair and reasonable process must be followed, even in the case of performance dismissals and where you have your own performance management procedures, these must be followed to the letter.