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, a ruling in relation to Part-Time Workers, and whether TUPE applies to vicarious liability. We also have a brief look at the Consultation on the 2026 minimum wage changes.

For Women Scotland Ltd 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 Ltd 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 their 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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Court of Appeal upholds decision that part-time workers must prove that being part time is the sole reason for less favourable treatment

In Augustine v Data Cars Ltd, the Court of Appeal upheld the tribunal’s dismissal of a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Regulations”).  Augustine, a part-time minicab driver, argued that being charged the same flat-rate £148 circuit fee as full-time drivers amounted to less favourable treatment.

While the court agreed that the law aims to protect part-time workers, it stuck with an older Scottish ruling (McMenemy v Capita), which says part-time workers must prove their status was the only reason for the poor treatment.

Despite disagreements regarding the interpretation of the UK Regulations against the EU Directive, the Judges eventually agreed that McMenemy should be followed.  However, Augustine has been granted leave to appeal to the Supreme Court, due to the significant unresolved legal issue.

The Court acknowledged the unsatisfactory state of the law and highlighted the need for Supreme Court clarification or regulatory reform.

Please remember that if you have part-time staff and they are treated inconsistently, for whatever reason, be ready to explain the reasons for any differences in treatment, just in case you get a claim.

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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.