Top 5 recent workplace developments – May 2025

Here is our selection of key recent employment law developments for employers, HR professionals and in-house lawyers.

1. Discrimination: Definition of “sex”
2. Immigration: Proposed reforms
3. Employment Reforms: Update
4. Discrimination: Victimisation 
5. Pay: Additional hours 

1. Discrimination: Definition of “sex”

The Supreme Court has ruled that the Equality Act definitions of “sex”, “woman” and “man” are based on biological sex. Following this judgment, the EHRC issued interim guidance.

The central question the UK’s highest court had to decide in For Women Scotland v The Scottish Ministers was whether the term “woman” in the Equality Act 2010 means a biological woman or whether it has a broader meaning to include transgender women with a gender recognition certificate. The Supreme Court unanimously found that the terms “woman”, “man” and “sex” in the Equality Act refer to biological sex. You can read our detailed update on this decision here.

In reaching its decision, the Supreme Court was keen to stress that the ruling should not be seen as a triumph of one or more groups in our society at the expense of another.  They emphasised that the law protects transgender people from unlawful discrimination and harassment through the protected characteristic of gender reassignment. Trans people also continue to be protected where they are discriminated against or harassed because of their perceived sex. 

Britain’s equality regulator, the Equality and Human Rights Commission (EHRC), has issued an interim update on the implications of the Supreme Court’s decision, including providing some guidance on single-sex toilets, changing and washing facilities.  

The EHRC is updating its guidance, with a public consultation expected in mid-May to help the EHRC understand the practical implications of the Court’s decision. It aims to provide an updated Code of Practice to the government by the end of June 2025 for ministerial approval. 

Practical point

Employers should be conscious of their obligation to provide single sex changing and toilet facilities while continuing to ensure as far as possible that trans people are treated with dignity and protected from discrimination and harassment. 

The judgment raises complex and sensitive issues for employers and service providers. If you have any queries on the judgment or its implications, please get in touch with your usual Clyde & Co contact.

For Women Scotland Ltd (Appellant) v The Scottish Ministers (Repondent)

2. Immigration: Proposed reforms 

The Government has published a White Paper on immigration which foreshadows significant changes to the UK immigration landscape.

The White Paper sets out the government's plans to restore control over the immigration system.

There are a number of significant proposed changes to the Sponsored Skilled Worker (SSW) Visa route including:

• Reinstatement of the Graduate Level Skills threshold except for those included on a revised Temporary Shortage List which will be subject to ongoing review
• Further increases to the minimum Salary thresholds 
• An increase in the minimum English language threshold for SSW Visa applicants and the introduction of a minimum English language requirement for their adult dependents 
• Increases to the Immigration Skills Charge, to £1,320 per year of the Visa sought for Large Sponsors (currently defined as one which exceeds two or more of these requirements: i) 50 UK-based employees; ii) a gross annual turnover of £15 million; and iii) a balance sheet total of £7.5 million), and approximately £480 for Small Sponsors

Changes to the Student and/or Graduate Visa routes are also proposed, including reducing the maximum visa duration for Graduate Visas to 18 months. 

In addition, the standard eligibility period for Settlement will be increased from 5 to 10 years, with reduced eligibility periods “based on contributions to the UK economy and society”. Details are awaited concerning the qualifying criteria and to what extent transitional arrangements will apply to those SSW Visa holders already in the UK.

Practical point:

A White Paper sets out government policy for future legislation and has no immediate impact on the current legal/ regulatory framework. Although there are no definitive timelines currently, some proposed changes - including changes relating to the Skilled Worker, Student, Graduate routes and potentially Settlement eligibility - may be implemented by October 2025. 

Further details about these proposed changes are set out in: UK Immigration Update – May 2025

3. Employment Reforms: Update

The Employment Rights Bill continues to progress through Parliament.

The Employment Rights Bill is currently at Committee stage in the House of Lords where the Bill is undergoing detailed consideration.

The government has published proposed amendments to the zero hours and low hours workers guaranteed working hours provisions of the Bill for the Committee to consider. These include expanding the categories of automatically unfair dismissal to include dismissals linked to the right to guaranteed hours. Another amendment, to ensure that certain workers on annualised hours contracts fall within the scope of the right to guaranteed hours, has already been agreed by the Committee.

Concerns have been raised about the Bill’s third party harassment provisions, which introduce a significant new liability on employers for harassment (on any ground) of their employees during the course of their employment by third parties, and the burden this will place on employers. 

Practical point:

The Bill is scheduled to complete the Lords Committee stage on 5 June 2025. 

4. Discrimination: Victimisation

In a race discrimination claim, the Employment Appeal Tribunal (EAT) noted that it was not necessary to expressly allege discrimination in order to trigger protection against victimisation.

Ms Kokomane, who was the only non-white full-time employee at work, raised complaints about being treated differently and of bullying in relation to an incident when another employee accused her of shouting. At her grievance meeting she said that black women and girls were known to be loud. 

Victimisation is when someone is treated less favourably because they have done a “protected act” which includes making a complaint about discrimination or bringing a discrimination claim.

In ruling on her victimisation claim, a tribunal had decided that Ms Kokomane had not done a protected act because she had not made specific allegations about discrimination in her grievance or at the hearing. 

However, the EAT found that an employee does not need to state explicitly that an act of discrimination has occurred for there to be a protected act. All that is required is for a complaint to be made about something that could amount to an act of discrimination to trigger protection from victimisation.

Practical point:

Employers should be mindful that an employee may have protection against victimisation where they have made a complaint about something that could be an act of discrimination - even though they have not made an express allegation of discrimination. 

Ms M Kokomane v Boots Management Services Ltd 2025 

5. Pay: Additional hours

The EAT has ruled that an employee was not entitled to additional pay for hours worked in excess of his normal working hours.

Mr Hudek's contract required him to work five shifts a week. The expectation that a shift would take nine hours (which was subsequently increased to 9.4 hours) was subject to a requirement "to work such hours for each working shift as are necessary for the proper performance of your work duties". Overtime was paid for any extra full shift or half shift (at least 4.5 hours) worked but if a shift took longer than intended but less than an additional 4.5 hours, he did not receive any additional pay.

Between 2021 and 2022, Mr Hudek's shifts averaged over ten hours. He brought an unlawful deduction from wages claim on the basis that he should be paid pro rata for the additional hours he worked. An Employment Tribunal decided that there was an implied term that he would be paid for all additional hours worked. 

The EAT allowed the appeal, concluding that the contractual terms were clear.  They entitled him to his basic salary for working five shifts per week of variable length – and that he would only be entitled to overtime payments if he worked an extra shift or a half shift. 

Practical point:

This case illustrates the importance of ensuring that your employment contracts clearly state when overtime is payable, and when it is not. It is a useful reminder that courts and tribunals cannot use implied terms to replace or contradict express terms.

This decision is significant for industries where employees have variable working hours.

Brake Bros Ltd v Mr S Hudek 2025