Employment case law update: autumn 2025

With the Employment Rights Bill continuing to work its way through Parliament (further amendments by the House of Lords last week means it will need to return to the House of Commons again before it can be passed), much of the focus has been on the statutory changes it will introduce. Meanwhile, employment tribunals and appellate courts continue to issue decisions that have an immediate and practical impact for employers and employees alike.

A second autumn employment law update focusing on recent case law developments from the Employment Tribunal can be found here.

'Employee' and 'worker' status

In Partnership of East London Co‑operatives Ltd v Maclean, Maclean, a qualified nurse, provided services for Partnership of East London Co-operatives Ltd (PELC) through a personal service company (PSC), invoicing PELC for the shifts worked. When the relationship ended, Maclean brought claims for unfair dismissal, whistleblowing detriment and holiday pay. To be entitled to bring some of these complaints, she needed to establish that she was either an employee or a worker of PELC.

At a preliminary hearing, the Employment Tribunal (ET) held that she was both an employee and a worker. PELC appealed.

Legal analysis

The Employment Appeal Tribunal (EAT) upheld the ET's conclusion that the contract was with Maclean personally (not her PSC). However, it found the ET’s reasoning on employee status problematic. In particular, it questioned its inference that there was mutuality of obligation – a key element to establish employment – despite documents stating that there was no obligation on PELC to offer, or Maclean to accept, shifts. It also found the ET’s treatment of personal service, specifically the right of substitution, insufficiently reasoned. As a result, the ET's findings that Ms Maclean was a worker and an employee were quashed.

Wider implications

This case reinforces that Tribunals will scrutinise the reality of the working relationship, not just contract wording, and employers should ensure that contractual terms reflect the true nature of the relationship. It also highlights the central role of mutuality of obligation, personal service and control in any status assessment, particularly where work is intermittent or bid-based.

Procedural integrity of disciplinary investigations

In Mr J Alom v The Financial Conduct Authority, Mr Alom was summarily dismissed for misconduct having been found to have:

1. sent an anonymous harassing email; and
2. breached confidentiality by referring to a confidential investigation outcome in a second email.

He brought claims for unfair dismissal, discrimination and harassment. The Tribunal dismissed all claims. Mr Alom appealed.

Legal analysis

On appeal, Mr Alom argued that:

1. he should have been provided with transcripts of investigation interviews;
2. the disciplinary officer had prejudged the matter by using a 'script' prepared by HR at the disciplinary hearing;
3. a search of his work computer infringed his Article 8 right to privacy; and
4. he had not received a fair hearing because the Tribunal's reserved judgment was delayed by approximately nine months.

The EAT dismissed the appeal. In so doing it emphasised the importance of identifying what evidence was relied upon in the disciplinary case. Even without the investigation transcripts, the Claimant had received copies of the relevant emails and the investigation report, and was able to understand and respond to the allegations against him. The dismissing officer also made the decision without seeing the interview transcripts.

The EAT also found that the dismissing officer made the decision independently and that the HR 'script' did not show prejudgement. The decision to dismiss did not rely upon the results of the computer search, and therefore had no bearing on its fairness. Although there was a delay in issuing the ET's written judgment, it did not follow that the hearing had been unfair.

Wider implications

This case emphasises several key procedural considerations when dealing with disciplinary proceedings: the need for clearly defined disciplinary charges, adherence to the ACAS Code of Practice on Disciplinary and Grievance Procedures, and ensuring that employees have sufficient information to understand the case against them, including access to witness evidence relied upon. The case also illustrates that unfair dismissal claims can be successfully defended despite procedural imperfections.

Helpfully for employers, the EAT made clear that HR may provide input into disciplinary proceedings, including preparing scripts for hearings. However, HR advice should be limited to guidance on procedure and should not suggest any view as to outcome, to preserve the independence of the decision maker.

Race discrimination and harassment

In Kellington‑Crawford v Newlands Care Angus Ltd, the ET upheld claims of direct race discrimination and harassment after three managers spoke in Polish during a disciplinary meeting. This excluded the Claimant, who did not speak or understand Polish. Compensation for injury to feelings was awarded.

Legal analysis

The ET found that speaking a language unknown to the Claimant during a formal performance-related meeting constituted race discrimination and harassment. Whilst recognising that those speaking Polish did not intend to harass the Claimant, the ET found that it was reasonable for the Claimant to feel harassed. The ET emphasised that the formal context of the meeting was key and that day‑to‑day multilingual interactions alone would not meet the threshold for harassment.

Wider implications

The case underlines the importance of employers having clear communication policies and expectations in formal settings. Where sensitive, performance-related matters are discussed, all employees must be able to participate fully. This is particularly important where there is a diversity of languages and background in the workplace.

Whistleblowing

In Argence‑Lafon v Ark Syndicate Management, a senior underwriter raised concerns about a high-value insurance claim, suggesting it was invalid and implying fraud. He also asserted that his employer was complicit in approving the claim. He argued these concerns were protected disclosures under whistleblowing legislation. Despite multiple investigations finding no evidence of fraud, he persisted in his allegations and was later dismissed. He brought claims for whistleblowing detriment and dismissal.

Legal analysis

While the ET accepted that some of the disclosures were protected, significantly it found that these did not influence the dismissal (which was on performance-related grounds). However, the ET did find that there were procedural failings which rendered the dismissal unfair; importantly the true reason for dismissal had not been disclosed to the Claimant in advance, depriving him of the opportunity to prepare a response. The case was appealed.

The EAT dismissed the employee's appeal and held that the ET did not err in its approach to the protected disclosures or causation. Importantly, the EAT concluded that the Claimant's later disclosures were not protected, as they were unreasonable in light of the repeated investigations' findings and not in the public interest. It also found that the ET had failed to consider the internal appeal process, which can remedy earlier procedural defects. The unfair dismissal finding was set aside and was remitted to the ET for reconsideration.

Wider implications

This case is reassuring for employers because it confirms that whistleblowing disclosures will not necessarily remain protected indefinitely. Repeated allegations after a reasonable investigation can lose protection. This emphasises the importance of carrying out a full and fair investigation into allegations.

It also acts as a reminder to employers that a properly conducted internal appeal can rectify earlier procedural missteps and preserve the fairness of the dismissal.

Many thanks to Zoe Hare, current trainee in the team, for her help in preparing this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2025