UK employment law round-up: February 2025

Higgs v Farmor’s School - free speech case 

The Court of Appeal (CA) has returned its judgement in Higgs v Farmor's School. The case is important as it reminds employers that where an employee expresses views that are protected, but the employer finds the expression of these views objectionable, the employer must be conscious that if there is any disciplinary action, this must be proportionate otherwise it could be discriminatory.  

The case concerns a Christian school worker who was dismissed ‘for gross misconduct' for Facebook posts that were perceived as transphobic and homophobic. The matter in question was whether the dismissal constituted direct discrimination and harassment, based on her religious beliefs, or whether the dismissal was justified. The case goes into great detail, and practitioners are advised to consult further information on the case in the employment law content on Religion and Belief Discrimination.  

With the February Court of Appeal ruling, it has now been stated that: 

• The original dismissal was unlawful discrimination on the ground of religion or belief. 
• Where a dismissal is due to the employer finding the expression of a person’s religion or belief objectionable, then the dismissal is only lawful if the employer can prove that its response was proportionate.  

The decision is an important and employers can be mindful of it in relation to (for example), employees expressing views on religion, sexual orientation, or gender identity. 

Asda equal pay case status update 

Retailer Asda has been part of an ongoing pay dispute. The employees making the claim are predominantly female store workers. They claim that they are entitled to be paid the same as workers in Asda depots who are predominantly male. Previously, the Supreme Court has confirmed that the depot workers are appropriate comparators for the purpose of an equal pay claim.  

On the last day of January, we have now seen the result of the second stage of this claim, the comparison between the lead claimants and the selected comparators. Following the comparison, the tribunal stated that 12 of the 14 lead claimants were performing work of equal value to the male comparators.  

The next stage will be for Asda to raise a potential material defence to justify the difference in pay. This means Asda will have to provide a reason, not related to sex, for the difference in pay. 

Please note that Asda is not the first food retailer subject to equal pay claims; Tesco, Sainsbury’s, Morrisons and Co-op also have ongoing cases against them. Members can see the status of the current law on equal pay in the employment law page. 

‘Ban on NDAs’ at work 

The government is reviewing the use of Non-Disclosure Agreements (NDAs) in the workplace and, although the original Employment Rights Bill did not contain provisions on NDAs, there is potential for the legislation to be amended to limit their use. 

It is common practice to use NDAs as part of settlement agreements at the end of employment, as they may be useful to protect trade secrets, business plans, client lists, financial data, or the amount of settlement received. However, concerns have been raised that NDAs should not be used to conceal some matters, especially in cases of sexual harassment and discrimination.  

With a review likely to happen, experts from the CIPD Public Policy team have outlined key points for the government to consider, if it decides to ban NDAs. 

Of the Public Policy team’s considerations, it is demonstrated that CIPD research shows most employers would support a ban on NDAs, however some lobby groups are against the ban because they believe NDAs help protect the privacy of employees who have experienced trauma, allowing them to keep their experience confidential. 

Members can consult the Public Policy briefing for further information and see the guide on the proper use of NDAs for the current rules. 

Employment law reform – call for evidence on skills 

We are currently working to keep members up-to-date with proposals for employment reform by tracking the Employment Rights Bill and broader plan to Make Work Pay.  

People professionals may be interested in an open call for evidence on further education and skills, that is taking submissions until 7 March 2025. Amongst the matters being considered is whether the government could narrow the gap between the skills employers need and the skills that employees have, plus, what the challenges are with the current apprenticeship system and how employers view the quality of work placements.  

Tribunal rulings to have on your radar 

A number of tribunals have returned in February with interesting points of note for people professionals: 

• In Easton v Secretary of State for the Home Department (Border Force) a tribunal found that as the claimant omitted to mention a previous dismissal for gross misconduct on an application form, the defendant was within its rights to dismiss the claimant.  
• In Briggs vs Trustees of the National Museums of Scotland the tribunal found in favour of the claimant, that she was unfairly dismissed from her role as a digital media content producer. The tribunal agreed with the capability reasons put forward by the employer (which included the employee having only created six pieces of content, compared to a colleague’s 73 posts in the same timeframe), however it reached its decision based on the employer’s failures in following its own internal PIP process (for example by not issuing any formal warnings before dismissal).  
• Further, in Metroline Travel Ltd v Taylor (debarred) we are reminded of the band of reasonable responses in unfair dismissal claims. In the case, the EAT held that the tribunal had substituted its view for that of the employer which it should not have done. Instead it should have considered whether the employer’s decision not to seek certain witness statements, and to rely heavily on some CCTV footage, was within the range of reasonable responses a reasonable employer could have taken.