Robert Spicer
We are pleased to share a run down of Bob Spicer’s case law summaries featured on his Linked In page from the past month March 21st – April 24th 2025, covering key developments in the practice area.
A huge thank you to Bob Spicer of Frederick Place Chambers for his continued support of Chronicle Law and for allowing us to share his insights with our legal professional community.
This month we cover the following subjects:
1.Employment Tribunal
- Compensation – Medical Evidence
- Equal Pay
- Compensation – race discrimination
2. Worker Status
3. Unfair Dismissal
- Resignation
- Proportionate Response
4. Discrimination
- Disability Harassment
- Race Discrimination
- Disability anonymity
Employment Tribunal
Compensation – Medical Evidence
Gourlay v West Dumbartonshire Council (2025) Morning Star, April 1, EAT
In 2015 G, an employee of WDC, was dismissed for gross misconduct. He complained of unfair dismissal and disability discrimination. The complaints were upheld and the tribunal accepted medical evidence that WDC’s conduct had made G permanently unfit for work because of a severe depressive illness. It reduced compensation for lost earnings and pension by 80 per cent on the basis that G would probably have retired early or would have been dismissed lawfully because of work relationship breakdowns. G appealed to the EAT.
Decision
1. The appeal was allowed and the matter remitted to a fresh tribunal for reassessment of compensation.
2. The reasoning of the tribunal had been flawed and the reduction in compensation wrong in law.
3. Tribunals must ask whether a lawful dismissal would have caused the same psychiatric harm. There was no evidence of this.
4. There was no medical evidence to support the tribunals’ view that G might have retired early.
5. The tribunal had accepted medical evidence that WDC’s discrimination had been the sole cause of G’s psychiatric injury.
Equal Pay
Expert evidence in employment tribunal
Tesco Stores Ltd v Ms K Element and others [2025] Morning Star, March 18, EAT
More than 50,000 employees of Tesco claimed equal pay in a long-running dispute. Tesco sought to introduce expert evidence from economists in support of its claim that market forces had influenced its pay rate. The ET refused this request and Tesco appealed to the EAT.
Decision
1. The appeal was allowed and the matter remitted to the same tribunal to decide whether the expert evidence could be admitted.
2. The decision of the ET was unsafe. It had misapplied the legal test by focusing on the validity of Tesco’s defence rather than whether expert evidence was necessary to assess the issues. It had misunderstood Tesco’s case.
3. The ET did not fully consider the balance between the helpfulness of expert evidence in resolving the case and the costs and delays associated with allowing expert testimony. This balancing test had not been properly applied.
Compensation – Race Discrimination
Sharma v University of Portsmouth [2025] EAT 19
S, and employee of UP, complained to the ET of a number of allegations of race discrimination and victimisation. A number of the complaints were upheld. A total of £286,702.80 was awarded against UP. S appealed to the EAT on the basis that the ET had failed to take a number of relevant considerations into account and had reached some conclusions on the basis of flawed reasoning.
Decision
1. The appeal was allowed in part.
2. The ET had not address the issue of the impact of the discrimination on S’s career progression and loss of future earnings.
3. The ET had failed to consider the whole of S’s case in relation to UP’s breaches of the ACAS Code. The appeal on the 10 per cent ACAS uplift was allowed.
Worker Status
Personal status
Ter-Berg v Malde and Hancock (2025) Morning Star, March 25, EAT
T, a dentist, sold his practice to a company in 2013 and continued to work under an associate agreement. Following the end of the arrangement T brought a number of claims in the employment tribunal on the basis that he was an employee or a worker. The ET found that he was neither. He appealed to the EAT.
Decision
1. The appeal was allowed and the matter was remitted to the ET.
2. The decision of the ET had been unsafe. T had satisfied the personal service requirement.
3. Worker status had a lower threshold than employee status. The lack of employment control did not automatically preclude worker status.
4. Mutuality of obligation is not a strict requirement for worker status. The ET had been wrong to treat it as decisive in ruling out worker status.
5. The ET had not fully assess the issue of whether T had provided services as part of his own business.
6. Worker status should not be dismissed solely because an individual is not an employee.
Unfair Dismissal
Resignation
Impact Recruitment Services Ltd v Korpysa [2025] EAT 22
K was employed by IRS, an agency which supplied her services to HJL. In March 2020, at the start of the pandemic, K was laid off. She regarded this as a dismissal. IRS alleged that K had asked them to pay her holiday pay, provide a copy of her contract and her P45. Its treated this as a resignation. K denied resignation and complained of unfair dismissal. The ET found that there had not been a clear and unequivocal resignation. The reason for K’s dismissal was a mistaken belief that K had resigned. This was not a potentially fair reason. The dismissal had been substantively and procedurally unfair. IRS appealed to the EAT.
Decision
1. The appeal was allowed.
2. Where an employer mistakenly but genuinely believes that an employee has resigned, that belief is a reason for dismissal. This may justify the dismissal.
3. The ET should consider whether the dismissal was unfair. This involves consideration of whether the employer had acted reasonably and whether it had taken reasonable steps to decide whether the employee had actually resigned.
Proportionate response
Ofsted v Hewston [2025] EWCA Civ 250, Court of Appeal
Facts H was employed by O as an inspector. In 2019, during wet weather in a school visit, he brushed rainwater from a student’s head and shoulders as an act of kindness. The school reported him to the local authority. O started disciplinary proceedings and dismissed H for gross misconduct. O accepted that there was no safeguarding concern but found that the physical contact was inappropriate and a serious lapse of professional judgment. H complained of unfair dismissal. The ET dismissed the complaint on the basis that the dismissal had been within the range of reasonable responses. H appealed to the EAT which allowed the appeal. It stated that O did not have a no-touch policy and no training on appropriate physical contact. O had failed to disclose key documents, including the pupil’s statement. This denied H the opportunity to respond to the allegation. O appealed to the Court of Appeal.
Decision
1. The appeal was dismissed.
2. O had failed to explain exactly what H had done wrong.
3. Reputational risk and lack of trust cannot be used as a catch-all reason for dismissal unless based on genuinely serious misconduct.
4. H had not been given a fair chance to defend himself during the disciplinary procedure.
Discrimination
Disability Discrimination – Harassment
London United Busways Ltd v Sener [2025] EAT 37
S, a bus driver, complained of harassment related to his disability. This concerned a number of communications related to his disability. S’s reasonable perception of the effect of these communications was embarrassing and upsetting. The ET upheld the complaint. The employer appealed to the EAT.
Decision
1. The appeal was allowed in part.
2. The communications included treatment by managers at meetings and by controllers responsible for S’s bus route.
3. The ET’s conclusions in relation to S’s perceptions had not been properly explained.
4. Findings of harassment involving the controllers had been properly reached and explained.
5. These findings survived the appeal and the ET had not erred in failing to dismiss the overall complaint as being out of time.
Race Discrimination – Harassment
Smith v John Raymond Transport Ltd [2025] EAT 13
S, who described himself as of black Jamaican heritage, aged 77, was employed by JRT as an HGV driver. He was dismissed after three days for poor driving based on reports to the employer. S complained of harassment related to race and age, and direct discrimination. The ET dismissed all the claims. It set out a detailed analysis of the relevant legal principles and the factual issues. S appealed to the EAT.
Decision
1. The appeal was dismissed.
2. The ET decision could not be challenged. The factual decision had been properly explained.
3. Other issues raised by S, a litigant in person, during the appeal, did not show any error of law.
Disability Discrimination – Anonymity
F v J {2025] EAT 34
F suffered from Aspergers Syndrome. He had concealed this from his family and from his previous employers. He notified his condition to his current employer. He was concerned, on the basis of experience and academic research, that if his condition were publicly known, it would have serious effect on his employability. He stated that he would not proceed with his disability discrimination claim unless he was granted anonymity. The ET refused this. F appealed to the EAT.
Decision
1. The appeal was allowed.
2. The ET had set too high a bar for F. It had focused on medical evidence and the fact that he had obtained employment, without considering whther the new employer had been aware of the disability.
3. Anonymity for both parties was not contrary to the public interest.