Just as we thought that the start of April was going to be a bit of a rest after the end of Manic March, the Supreme Court and the Presidents of the Employment Tribunals have given us pause for thought…
Supreme Court decision – For Women Scotland Ltd v The Scottish Ministers
It will be unlikely to have escaped anyone’s notice that a significant decision has been handed down this month by the Supreme Court, on the question of whether a person, with a full gender recognition certificate which recognises that their gender is female, is a “woman” for the purposes of the Equality Act 2010 (EqA). This has been an extremely emotive case, with highly charged emotions on all sides. For the purposes of this article, it is not for me to get into the rights and wrongs of the case or the decision.
However, it is important for employers to be aware of this, and the impact that this could have.
The decision of the Supreme Court was that for the purposes of the Equality Act, ‘sex’ means male or female, based on birth sex, regardless of whether an individual has a Gender Recognition Certificate. This has significant implications.
The first – and most important thing – to note, is that the Supreme Court was at pains to make clear that this does not mean that transgender men and women do not have any protection under the Equality Act. It remains the case that transgender men and women will have protection under the relevant provisions relating to gender reassignment, and will remain able to claim discrimination on grounds of their ‘perceived’ (acquired) gender. However, a trans woman may not, for example, be able to claim discrimination if she is denied the use of women’s toilets as a result of single-sex policies relating to the use of such spaces. This alone could be extremely challenging for employers to navigate.
The second thing of which employers should be aware of is that this is, as noted above, a very emotive issue. Employees may have strong views either way, and when emotions run high, this could lead to workplace disputes. The decision has, understandably, caused wide levels of concern within the transgender community, and already we are seeing significant disputes arising on social media amongst interested parties. This could well spill over into the workplace where employers have employees on competing sides of the debate.
So how should employers deal with these, and other, issues which may arise? Given the complexity of the issues involved, and the invariably individual nature of these issues, it is difficult at this stage to given any ‘one size fits all’ advice, and we would always recommend taking personalised advice at the time. This is particularly the case in light of the ever-changing legal landscape in this area and the potential for negative press and costly claims.
We have seen a lot of advice on social media and in the press on what employers ‘must’ now do in light of the decision. However, our view is that this is not as black and white as these comments and articles portray it to be, and we would always recommend taking advice to ensure that employers do not face costly discrimination claims.
Employment Tribunals – Responding to Claims
The Presidents of the Scottish and the England & Wales Employment Tribunals have, on the same day as the decision in For Women (above), issued a letter confirming that the Practice Directions on the Presentation of Claims, Responses and Statutory Appeals have now been promulgated, meaning that five weeks from the date of that letter (immediately after midnight on 20 May 2025), it will only be possible to respond to Employment Tribunal Claims:
- online, either via the ‘Citizen’ portal (for unrepresented parties) or via the My HMCTS portal (for representatives);
- by post to the Employment Tribunal Central Office;
- by hand to an Employment Tribunal listed in the schedule to the Practice Direction; or
- in very limited circumstances, by email, to two new dedicated email addresses (one for Scotland, and one for England & Wales). However, email will only be accepted in ‘exceptional and evidenced’ circumstances where there is a fault with the online service, and accompanied by ‘a screenshot of the error message generated by the online submission service confirming a system malfunction at the relevant time’.
This is important for Respondents to note as until now it has been normal practice to submit responses to Employment Tribunal Claims by email. If this occurs (other than as set out at 4 above) from 21 May 2025 onwards, this will lead to the response being rejected and may lead to default judgment being issued. Solicitors will of course be aware of this change and may well already be using the MyHMCTS portal, but for those employers representing themselves, this is a significant change and one of which it is vital that employers are aware.
Neonatal Care Leave and Pay
From 6 April 2025, employees who have a baby who needs at least 7 full days of neonatal care within 28 days of their birth will been titled to one week’s neonatal care leave for each week their baby spends in neonatal care. This is subject to a maximum of 12 weeks, and is in addition to any other leave to which the employee may be entitled, such as maternity or paternity leave. This will also apply in adoption and surrogacy cases and must be taken within 68 weeks of the baby’s birth. Neonatal care leave is paid at the same rate as statutory paternity pay (see below for current rates), provided that the employee earns at least the lower earnings limit.
Rates and Limits
Finally a reminder of the changes which came into force at the start of the month:
The Employment Tribunal awards
| Current Limit | New Limit | |
| A week’s pay (statutory redundancy pay calculations) | £700 | £719 |
| Compensatory awards for unfair dismissal | £115,115 | £118,223 |
| Statutory guarantee pay ?(daily rate) | £38 | £39 |
National Minimum Wage
| Current Rate | New Rate | |
| Apprentice rate | £6.40 | £7.55 |
| 16-17 Year Old Rate | £6.40 | £7.55 |
| 18-20 Year Old Rate | £8.60 | £10.00 |
| National Living Wage (21 and over) | £11.44 | £12.21 |
SMP, SSP etc
| Current Rate | New Rate | |
| Statutory maternity and adoption pay (after the first six weeks), statutory paternity, shared parental and parental bereavement pay | £184.03 (or 90% of earnings, if lower) | £187.18 (or 90% of earnings, if lower) |
| Statutory sick pay | £116.75 | £118.75 |
Contact details
Gemma.Sherbourne@tyrlaw.co.uk +44 (0)7535 652758 +44 (0)113 521 7556
