Recent developments in employment law: summer 2025

Blog

12.08.2025

The UK employment law landscape has been dominated by Labour’s Employment Rights Bill (ERB), as it progresses through Parliament. For a detailed summary, see our overview of the ERB. This article turns the spotlight on other significant legal developments from this summer that employers should not overlook, including a whistleblowing update, amendments to the Equality and Human Rights Commission’s interim guidance following the For Women Scotland decision, new Government consultations, and three recent cases with practical implications for workplace policies.

Whistleblowing

The Government has published an independent report into whistleblowing. The report was commissioned by the previous Government and is titled “Understanding the Effectiveness of the Whistleblowing Framework in the UK.” The report examines the effectiveness of the current whistleblowing framework against the original objectives of the Public Interest Disclosure Act 1998, which introduced legislative legal protection for workers who blew the whistle in the workplace. The report therefore considers the effectiveness of the current whistleblowing framework and the key barriers to whistleblowing, concluding with recommendations for improvement.

In terms of its findings, the report concludes that many workers are unaware of their rights or are unsure of how to report their concerns. It also finds that organisations vary widely in terms of how they handle whistleblowing concerns, and that there is evidence of inconsistent support and follow-up. In terms of recommendations, it calls for clearer definitions, especially in terms of who qualifies for protection and what amounts to a “protected disclosure”, in addition to changes to enhance protections afforded to whistleblowers, to improve reporting mechanisms and increase awareness of protections in general.

There is no indication as to what the Government intends to do with the report or its findings, especially as it originated under a Conservative Government. Nonetheless, the report highlights ongoing issues within the current whistleblowing regime and inconsistent approaches to whistleblowing in practice.

For Women Scotland

It will have been hard to avoid the extensive reporting around the Supreme Court’s decision in the For Women Scotland Ltd v The Scottish Ministers case. By way of recap, the Supreme Court unanimously ruled that the definitions of “woman”, “man” and “sex” for the purposes of the Equality Act 2010 refer to biological sex. More detailed commentary on the case can be found here.

Following the judgment, the Equality and Human Rights Commission (EHRC) published an interim update to highlight the main consequences of the judgment. This has recently been updated to include further provision about the workplace:

• The interim update now states that, in relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992.

• These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers.

• Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. Where changing facilities are required under the regulations, and where it is necessary for reasons of propriety, there must be separate facilities for men and women or separate use of those facilities such as separate lockable rooms.

The EHRC consulted on amendments to its draft Code of Practice for services, public functions and associations. It has been reported, given the number of responses to the consultation, that the EHRC is aiming to provide the revised Code of Practice to the Government by the end of August 2025 (rather than July as originally anticipated). There is still no timeframe for when the Employment Code of Practice will be updated to reflect the Supreme Court’s decision.

In the recent first instance decision of Hayes v The English Blackball Pool Association, the county court found that the decision by the Pool Association to exclude transgender women from the female category of competition was not discrimination. Although this decision is not binding, it gives an indication of how the lower courts will apply the decision in For Women Scotland in future cases.

Making work pay: unpaid internships

The Government is seeking evidence and views on unpaid internships and internships paid below the National Minimum Wage (NMW), as well as other roles which may be unpaid or paid below NMW.

As part of the Government’s Plan for Change, the Government has committed to banning unpaid internships (unless they are part of an educational or training course). Views from all stakeholders (individuals with internship experiences, employers/businesses, trade unions, educational institutions, legal and HR professions and non-profits and charities) have been requested, with a deadline of 9 October 2025. The Government’s findings are expected to be published in the early part of 2026.

Other consultations

In addition to a number of promised consultations on the ERB (outlined here), the Government intends to consult on:

• Employment status, including additional measures to strengthen self-employed protection (anticipated by the end of 2025).

• AI in the workplace

• Reform of non-compete clauses in employment contracts

In addition, the Government has indicated it will publish guidance on how the Fair Work Agency will exercise the power it brings to Employment Tribunal proceedings, and will also reflect on amending the Acas early conciliation period in light of the extension of Employment Tribunal time limits to six months.

Recent case law

Constructive dismissal:

In the recent Employment Appeal Tribunal (EAT) decision of Marshall v McPherson, the EAT clarified that the “last straw” prompting an employee’s resignation in a constructive dismissal case didn’t need to be a serious breach of contract on its own. Instead, the focus should be on the overall pattern of the employer’s behaviour and whether, taken together, this amounts to a fundamental breach of the implied term of trust and confidence.

Mr Marshall, a night-shift HGV driver, claimed he experienced additional pressure at work due to operational changes. He raised concerns around being able to take breaks but was told to manage the issue himself. Subsequently, his employer sent someone to accompany him whilst he working, which he found to be upsetting. He also raised additional complaints, some dating back to 2017. These were not dealt with so he resigned and claimed constructive dismissal.

The EAT found that the “final straw” that prompted Mr Marshall’s resignation (whether the delay in handling his concerns or the decision to send someone to accompany him on his shift) did not need to be a serious breach of contract on its own. What mattered was the broader pattern of behaviour by his employer which, when viewed cumulatively, amounted to a breach of trust and confidence.

Reasonable adjustments:

In the recent EAT decision of Hindmarch v North East Ambulance NHS Foundation Trust, the EAT found that where there is no prospect of an adjustment avoiding the disadvantage faced by a disabled employee, it is not reasonable to expect the employer to make it.

Mr Hindmarch worked as a non-emergency ambulance driver and suffered from severe anxiety, which was accepted as a disability. During the COVID pandemic, emergency staff were given one type of mask, while non-emergency staff received another. Mr Hindmarch became increasingly anxious about catching COVID, which ultimately stopped him from attending work. He was later dismissed and claimed unfair dismissal and failure to make reasonable adjustments, arguing that he should have received the same mask as the emergency staff to help him return to work.

The EAT held that whilst the Trust was under a duty to take reasonable steps to avoid the disadvantage faced by Mr Hindmarch (that he couldn’t return to work), there had been no failure to make reasonable adjustments. This was because the evidence did not support the contention that providing the alternative mask would have enabled Mr Hindmarch to return. As such, given that the adjustment would not have addressed the disadvantage, it was not reasonable to require the employer to make it.

Disability discrimination:

In the recent decision of Stedman v Haven Leisure, the EAT observed that a clinical diagnosis of ADHD or autism could be used as evidence of the existence of an impairment and its substantial impact – both key elements in establishing the definition of disability under the Equality Act 2010.

Mr Stedman had been diagnosed with both ADHD and autism. He applied for a job at Haven, but was unsuccessful. He brought a claim of disability discrimination in respect of the handling of his application. A preliminary issue arose as to whether he was disabled. The tribunal found that his impairments did not amount to a disability. However, the EAT held that the tribunal had erred in reaching this conclusion.

The EAT noted that a clinical diagnosis of ADHD or autism typically demonstrates that a professional has identified the individual as having significant functional difficulties. As such, this kind of diagnosis can be relevant evidence when assessing whether an impairment has a substantial adverse effect on day-to-day activities.

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