In this month’s Employment Law insights, we are looking at some recent case law including the landmark decision on the interpretation of the terms ‘woman’, ‘man’ and ‘sex’ in the Equality Act 2010 and the Equality & Human Rights Commission’s interim update on the practical implications of that judgment, the ruling in relation to the Part-Time Worker Test, and whether TUPE applies to vicarious liability. We will also have a brief look at the Consultation on the 2026 minimum wage changes.

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For Women Scotland v The Scottish Ministers and the Equality & Human Rights Commission’s ‘interim update on the practical implications of the UK Supreme Court judgment’

Last month the landmark decision in For Women Scotland v The Scottish Ministers saw the Supreme Court ruling that the terms ‘woman’, ‘man’ and ‘sex’ in the Equality Act 2010, are to be interpreted in relation to a person’s biological sex.

If you missed our summary of the case, click here.

Following the judgment, the Equality & Human Rights Commission has published an interim update on the practical implications of the UK Supreme Court judgment to highlight the main consequences of the judgment, primarily that:

The Supreme Court ruled that in the Equality Act 2010 (the Act), ‘sex’ means biological sex.

This means that, under the Act:

• A ‘woman’ is a biological woman or girl (a person born female)
• A ‘man’ is a biological man or boy (a person born male)

If somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC).

• A trans woman is a biological man
• A trans man is a biological woman

An updated code of practice to provide guidance on implementing the court’s decision, from the Equality & Human Rights Commission is expected to be submitted to the government, for ministerial approval, by the end of June 2025.

Barclays is one of the first companies to announce a change to their bathroom policy, stating that they will prohibit trans women from using female bathrooms in its buildings to ensure compliance with the law. However, Barclays have stated that they are committed to providing an inclusive working environment where everyone feels comfortable and has the opportunity for personal expression.

Following the judgment, Britain’s first known transgender judge, Victoria McCloud, has announced her intention to take the UK to the European Court of Human Rights over the court’s ruling, citing infringement of her Article 6 rights (which protects an individual’s right to a fair trial). McCloud, and other campaigners, will seek a declaration that the actions of the UK government and Supreme Court violate their fundamental human rights.

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Employment Appeal Tribunal upholds decision that part-time workers must prove that being part time is the  sole reason for less favourable treatment

The case of Mireku v London Underground Ltd [2025]  confirms that part-time workers must prove that being part-time was the only reason they were treated less favourably,  to win a claim under the law protecting part-time workers.   Mr. Mireku claimed his overtime was unfairly cancelled because he worked part-time, but the employment tribunal found the cancellation had nothing to do with his part-time status and rejected his claim. 

He appealed this decision, arguing the wrong test had been applied and the Employment Appeal Tribunal acknowledged that there were conflicting authorities on the question of causation under the Part Time Workers Regulations.  Some earlier cases had said that it was enough if the part-time status was the main reason for the poor treatment but the Court of Session (higher court) had previously ruled that part-time status must be the only reason.    In Augustine v Data Cars Ltd the Judge comprehensively reviewed all the earlier authorities and the court considered themselves bound (unless and until a higher court took a different approach) by the ruling that a claimant’s part-time status must be the sole reason for the less favourable treatment, in order for the claimant to be successful in their claim.

This is one to watch, as the case of Augustine v Data Cars Ltd was heard in the Court of Appeal on 10 April 2025 and so we await the judgment and whether there will be any update to the test for causation in relation to part time workers and less favourable treatment.

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TUPE did not apply in relation to vicarious liability for tort committed towards a third party prior to the transfer

In the case of ABC v Huntercombe (No 12) Ltd and others the claimant had brought a claim for damages after suffering injuries as an inpatient at a hospital owned by Huntercombe (the original employer and the Transferor). The claimant argued that the Transferor was vicariously liable for the acts of two employees who were subsequently transferred under TUPE to a new employer.

Employers are liable for torts, including negligence, carried out by their employees during the course of their employment, this is known as vicarious liability.

Under TUPE legislation, where a relevant transfer (TUPE transfer) takes place, all of the original employer’s rights, powers, duties and liabilities under or in connection with the transferring employees’ contracts pass to the new employer. However, the High Court ruled that the automatic transfer of rights did not extend to the original employer’s vicarious liability for torts committed by employees to a third party.

In this High Court decision, the judgment makes it clear that the purpose of TUPE legislation is to protect the rights of transferring employees after a transfer and so the new employer must take on any rights or liabilities that arise from the employees’ contracts with the original employer (or Transferor).  TUPE is not meant to shift all kinds of legal responsibility between employers. 

This case related to vicarious liability which involves responsibility (or obligations) to a third party (because the Claimant was a third party and outside the employment relationship), rather than directly between the employer and employee, and so the High Court ruled that this was too remote to transfer under TUPE.   TUPE is about employment rights, not about transferring all legal risk to a new employer.  New employers are not automatically responsible for legal claims brought by third parties for things that employees did before the transfer.  This was important for the new employer, because had liability transferred in this case, the right to use Huntercombe’s insurance may also have transferred with it.  

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Consultation on the 2026 minimum wage changes

It doesn’t seem long since National Minimum Wage increased (just last month!) and yet the Low Pay Commission has already announced their Consultation in relation to the 2026 changes in minimum wage.

The National Living Wage (NLW) is currently applicable to workers aged 21 and over, whereas the National Minimum Wage (NMW) is applicable to all workers of at least school leaving age.

The proposals, set out in the Consultation, include:

• The affordability and effects of a 2026 National Living Wage increase from £12.21 to somewhere between £12.50 and £12.80.
• The impact of the April 2025 NLW increase on workers, employers, the labour market and the economy so far.
• The effect of NMW increases on the employment prospects of younger workers.
• Views on different approaches to lowering the NLW age threshold. The options include:
  • Reduce the age of entitlement by one age group at a time. 

First, extending the NLW to 20 year olds, then 19 year olds, then 18 year olds, with rates for the remaining age groups (e.g. 18–19 year olds) moving closer to the NLW as they prepare to move over.

• • Align the 18–20 year old rate with the NLW over a number of years. 

This would mean that the 18-20 year old rate would increase faster than the NLW until the two were equal and the rate for 18-20 year olds was abolished.

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Next steps

As always, if you have any Employment Law or HR questions (whether related to the above or not), have a chat with our Employment Team.