Frontline UK Employment Law Update Edition 36 2025 - Case Updates

1. Kokomane v Boots Management Services Ltd
2. ABC v Huntercombe (No 12) Ltd and others
3. Cable News International Inc v Bhatti
4. Augustine v Data Cars Ltd [2025] EWCA Civ 658 (20 May 2025)
5. Handa v Station Hotel (Newcastle) Ltd and others [2025] EAT 62

1. Kokomane v Boots Management Services Ltd  [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) decided that the Employment Tribunal (“ET”) used too narrow a definition of what could amount to a “protected act” for victimisation claims under the Equality Act 2010, and did not properly analyse the context in which the complaint was made, including the way in which the employer would have understood the complaint.

The Claimant was the only black employee employed at the Respondent’s Sheerness store. She raised a written grievance complaining of differential treatment from her manager and being accused by them of “shouting” during a work incident. Later in her grievance hearing, the Claimant referred to black women being “known to be loud”.

Around the same time, the Claimant was dismissed due to redundancy and subsequently brought ET claims which included allegations that her redundancy selection and dismissal amounted to victimisation on grounds that she had made complaints of unlawful discrimination (referred to in the legislation as “protected acts”). For the purposes of her victimisation claim, she relied on two protected acts: her written grievance and a grievance hearing a year after, which related to a complaint of nothing being done in respect of the first grievance. The Claimant’s claim form set out that she was the only black employee and that she had been bullied whilst others had not been.

The ET decided that the grievance and grievance hearing did not amount to protected acts because the Claimant did not expressly refer to the protected characteristic of race or discrimination.

This was overturned on appeal. The EAT stated that the law clearly requires the ET to consider context. It assessed the victimisation provisions in the Equality Act and highlighted previous case law which indicated that Parliament must have intended that protection should arise from the making of the complaint and that this should not depend on how the complaint is articulated. Other race discrimination case law also made similar points, including that the word ‘race’ does not have to necessarily appear in a complaint.

The EAT stated “what is necessary is that the ET should take account of all of the factors that are provided in the information given by the employee to the employer” and that the ET needs to consider such information “on the basis of how it would be understood by the employer in context”. This includes general facts about the employee and the place of work. Although it would not be sufficient for the Claimant to merely point out she was a different race to others, the fact that she was the only black employee, that she had pointed out she was being treated differently as part of a grievance, and that the notes of the grievance hearing raised a negative stereotype, provided a broad context which the ET was required to consider and analyse. The case has returned to the same ET to reconsider.

This case demonstrates the importance of context when dealing with grievances, and that it is possible for a protected act to be made out even if the protected characteristic or reference to discrimination are not explicitly raised in an employee’s complaint. When considering whether a complaint constitutes a protected act, it is therefore important to not only consider the specific words used but also the broader context and circumstances in which the complaint is made.

2. ABC v Huntercombe (No 12) Ltd and others [LINK]

In this case, the High Court (“Court”) decided an employer’s vicarious liability to a third party for an act of pre-transfer negligence by its employee did not transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).

The Claimant sought damages for injuries suffered while she was an in-patient at a hospital owned and operated by the first Defendant (which was the transferor in a TUPE transfer, and the employer of the third and fourth Defendants, doctors who worked for the first Defendant). The Claimant claimed that the first Defendant was responsible for the injuries which she alleged where caused by the negligence of the third and fourth Defendants and it was therefore vicariously liable for their acts. Following a TUPE transfer, the third and fourth Defendants transferred to and became employed by the second Defendant (the transferee). The Court had to decide whether the first Defendant’s vicarious liability for the third and fourth Defendants’ alleged negligence transferred to the second Defendant under TUPE.

The Court focused on the purpose of TUPE, which is to protect employees in the event of a change of employer. The Court emphasised several key points:

• Vicarious liability is a secondary liability where a blameless employer becomes liable for wrongs committed by employees acting in the course of employment.
• For a transferor's liability to transfer under TUPE, the connection between the liability and the employment contract needs to be "direct" i.e. a direct obligation owed by the transferor to the employee.
• In this case, the transferor's (i.e. the first Defendant’s) liability was owed to the Claimant (a third party), not to its employees, making the connection “too remote” for the liability to automatically transfer under TUPE.

The Court decided that a previous decision, whereby a transferee was held to be vicariously liable for a football player who had negligently tackled another player and who had transferred under TUPE, should not be followed.

This decision is reassuring for transferees as it confirms that while TUPE safeguards employees' rights after a transfer, it does not extend to transferring an employer's vicarious liability to third parties arising out of an employee’s negligence, even if the responsible employee transfers. However, the Court held that had it found otherwise, it would have held that the first Defendant's right to claim on an insurance policy covering third party negligence claims would also transfer to the second Defendant.

3. Cable News International Inc v Bhatti [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal’s (“ET”) decision that it had both territorial and international jurisdiction to hear claims brought by a peripatetic journalist against her US-based former employer, despite the contract being governed by the law of the state of Georgia.

The Claimant, a British citizen, was employed from 2013 to 2017 as a broadcast journalist by the Respondent (based in Atlanta in the US) under contracts governed by the law of the state of Georgia. The Claimant was predominantly based in Asia, but regularly travelled across the world as part of her role. Following a foot injury, the Claimant required ongoing medical treatment, which she obtained in London from March 2017. The Respondent had a subsidiary based in London, but it refused the Claimant’s request to become London based, and permitted the Claimant only one day’s work in London (covering the London Bridge attack in June 2017) during her period of residence in London. In August 2017, the Claimant was informed at the London office that she was dismissed with immediate effect. Although the Claimant did not work for the Respondent again, she was paid until 31 December 2017.

The Claimant subsequently brought various ET claims including unfair dismissal, victimisation, and equal pay. The ET ruled that it had jurisdiction to hear the claims in relation to alleged wrongs committed from 1 March 2017 onwards (when the Claimant relocated to London), finding that her employment had a sufficient connection with Great Britain from that date.
On appeal, the EAT upheld the ET’s application of the “close connection” test to determine territorial scope, determining that the Claimant’s employment position changed over time, and that from 1 March 2017 her main base became London. The strength of a connection with Great Britain was “not necessarily immutable” throughout employment and it was an evaluative judgment. The EAT noted the significance of various factors including that the Claimant had been a frequent visitor to the London office, had an ID pass allowing access at any time, had been issued a Blackberry by the London office, and was on the London email distribution list including before March 2017.

The EAT also concluded that the ET had correctly addressed the governing law clause in the Claimant’s employment contract. The choice of Georgia law was deemed less relevant to the question of jurisdiction, as neither party suggested that the employment was more closely connected to Atlanta than London. The EAT thus confirmed that the contractual choice of law does not override jurisdiction where the employment has a sufficiently close connection to the UK.

This case confirms that even where an employee is based outside of the UK for a large part of their employment and works under a US contract, they may still benefit from UK employment law protections. Employers cannot rely exclusively upon contractual jurisdiction clauses to preclude the ET from exercising jurisdiction over employment disputes. Furthermore, employees operating across multiple jurisdictions may acquire UK employment rights, contingent upon their actual place of work rather than their contractual designation. Employers, particularly multinational businesses where an employee’s role involves international assignments, must carefully evaluate whether UK statutory employment protections may apply based upon employees' actual workplace locations, irrespective of the contract's governing law provisions.

4. Augustine v Data Cars Ltd [2025] EWCA Civ 658 (20 May 2025) [LINK]

In this case, the Court of Appeal (“CA”) confirmed that part-time worker discrimination under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the “2000 Regulations”) is limited to cases where the part-time status is the ‘sole’ reason for the less favourable treatment.

The Claimant was a part-time private hire driver working for the Respondent. All full-time and part-time drivers working for the Respondent had to pay a ‘circuit fee’ to the Respondent (regardless of the number of hours worked during the week) in order to access the Respondent’s booking system. The Claimant argued this circuit fee disproportionately affected part-time workers as it was a greater share of their earnings compared to full-time drivers.

Under the 2000 Regulations, part-time workers have the right not to be treated less favourably than a comparable full-time worker. The 2000 Regulations implement the Part-Time Work Directive 97/81 (the “Directive”), which was itself intended to implement a Framework Agreement on part-time work annexed to the Directive (“Framework Agreement”).

Regulation 5(2)(a) of the 2000 Regulations states that the right not to be treated less favourably applies only if “the treatment is on the ground that the worker is a part-time worker”. The key legal issue in this case concerned the interpretation of that provision and whether the part-time status must be the sole reason for the less favourable treatment, or whether it is sufficient for it to be an effective cause.

The Employment Appeal Tribunal (“EAT”) had decided that the Claimant had been treated less favourably than comparable full-time workers by the Respondent. However, it nevertheless dismissed the appeal on the basis that the less favourable treatment was not “solely” on the ground that the Claimant was a part-time worker. The EAT decided it was bound to follow the “sole cause” test set out in a decision of the Scottish Court of Session (Inner House) (McMenemy v Capital Business Services Limited), despite the broader “effective cause” test that had been used in other English EAT decisions.

The question for the CA was: (i) whether the EAT was right to hold that McMenemy was wrongly decided on the point at issue, and (ii) whether the CA should follow McMenemy. The CA unanimously dismissed the appeal and upheld the EAT’s decision that the correct approach was to follow McMenemy and apply the “sole cause” test, despite the majority of the CA finding that McMenemy was wrongly decided. Specifically:

• The majority decided that the phrase "on the ground that" should not be interpreted as requiring part-time status to be the sole reason for less favourable treatment. The CA noted that the word “solely” is used in the Framework Agreement, but not in the 2000 Regulations, and the CA was therefore required to decide whether the 2000 Regulations should be construed as consistent with the Framework Agreement. This would provide less complete protection for part-time workers who could not show their part-time status was the sole cause of the less favourable treatment. The CA could not find any good reason why the 2000 Regulations should be construed as if they incorporated the word “solely” when it must have been a deliberate decision to omit this word. Therefore, the CA considered that McMenemy was wrongly decided.
• Despite that, the CA felt bound to follow McMenemy to avoid inconsistent decisions being reached across UK jurisdictions as the ET operates in Scotland as well as England and Wales. The CA stated that whilst it is not bound by the doctrine of precedent to follow decisions of the Inner House of the Court of Session in Scotland or the Court of Appeal in Northern Ireland, where those courts have given a decision on the meaning of a statutory provision applicable throughout the UK, it is “highly desirable [to] follow the previous decision and leave it to the Supreme Court to resolve the difficulties.”
• The CA therefore did not consider any further discussion necessary on the basis of a pending Supreme Court decision in a separate case (Jwanczuk v Secretary of State for Work and Pensions [2023] EWCA Civ 1156) which concerns when the courts in England and Wales may depart from decisions of appellate courts in Scotland or Northern Ireland.

As the majority of the CA indicated that McMenemy was wrong, the CA gave leave to appeal to the Supreme Court to decide whether the correct test is the “sole” or “effective” cause test.
This case clarifies (for now) the approach the courts should take regarding part-time worker discrimination and the ultimate purpose behind the 2000 Regulations. However, the case leaves open the question of the extent to which courts in England and Wales should follow appellate court decisions of other UK jurisdictions, and it remains to be seen what the Supreme Court will decide on this issue.

5. Handa v Station Hotel (Newcastle) Ltd and others [2025] EAT 62 [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) provided guidance on the scope of agent liability in the context of external HR consultants being engaged to investigate grievances and conduct disciplinary hearings. Whilst HR consultants might potentially be regarded as acting as the employer's agents when performing such functions, the EAT concluded that the employer's later reliance on their findings and recommendations when making a dismissal decision did not mean the consultants were co-liable as agents for that dismissal decision.

The Claimant, an employee and director of the first Respondent, made allegations of financial impropriety which he claimed constituted protected disclosures. Subsequently, staff members raised grievances alleging bullying and harassment by the Claimant.

The first Respondent appointed external HR consultants (the fourth and fifth Respondents) to handle the grievance process and subsequent disciplinary hearing. The fourth Respondent conducted the grievance investigation, substantiating two complaints and recommending disciplinary proceedings. The fifth Respondent conducted the disciplinary hearing and found disciplinary charges to be substantiated and their report included a statement that dismissal for gross misconduct would be justified. The Claimant was summarily dismissed and unsuccessfully appealed the decision. He subsequently brought claims alleging that the fourth and fifth Respondents acted as the first Respondent’s agents and had subjected him to detriment due to whistleblowing. The ET struck out the claims against the fourth and fifth Respondents, finding no reasonable prospect of establishing an agency relationship.

The EAT dismissed the Claimant's appeal. It confirmed that whilst discrimination and whistleblowing legislation adopts common law agency principles, the ET must apply these flexibly to employment contexts. Although an external individual retained to conduct employment procedures could potentially be regarded as an employer’s agent whilst performing those functions, the factual basis for agency was not established in this case. Findings as to the degree of control, direction or constraint to which they were subject in that regard could be relevant.
Crucially, the EAT decided that even if the activities of the fourth and fifth Respondents were essential links in the chain of causation leading to the dismissal decision, with the first Respondent relying upon the investigation process carried out by the HR consultants, this could not establish liability for the dismissal itself based on agency principles. Only direct participation in the dismissal decision would potentially create such liability, which was not how the Claimant put his case.

This decision may reassure HR consultants engaged by employers to conduct independent investigations and provide recommendations within disciplinary or grievance procedures that they may not face potential co-liability as agents for subsequent decisions made by the employing organisation in reliance on their findings and recommendations. A key factor in the case was that the consultants made recommendations, rather than decisions. The case also clarifies that claimants seeking to pursue claims against individual investigators must establish that the individual directly caused the alleged detriment, rather than merely contributing to the process leading to the employer's decision.