News 📰
It has been a quiet month, but section 1 of the Higher Education (Freedom of Speech) Act 2023 did come into force on 1 August 2025. The legislation prevents English higher education providers from entering into a non-disclosure agreement with students, members, staff, or visiting speakers in relation to allegations of sexual abuse, sexual harassment or sexual misconduct, or other bullying/harassment.
Similar provisions will come into force in England and Wales on 1 October 2025 in relation to victims of criminal conduct, pursuant to implementation of section 17 of the Victims and Prisoners Act 2024.
Along the same ‘freedom of speech’ lines, the government has proposed a late amendment to the Employment Rights Bill to void provisions in most agreements between employers and employees in England, Wales and Scotland, which seek to prevent disclosure about harassment and discrimination.
It is essential that employers have appropriate standalone policies and risk assessments in place to combat instances of sexual misconduct. If you require any assistance in putting those policies or risk assessments in place or would like someone to review an existing policy or risk assessment, our employment team would be happy to help.
Case Law Update 📢
Mach Recruitment Ltd v Oliveira [2025]
The Claimant (Mrs Oliveira) was employed by a temporary work agency (G-Staff Ltd) which supplied her as an Alutray Operative to Butcher’s Pet Care Ltd (Butcher’s). At a later date, the Claimant became employed by a new temporary work agency, Mach Recruitment Ltd (Mach), and again she provided services in the same role for Butcher’s.
It was found that the cessation of the organised grouping of employees from G-Staff Ltd being supplied to Butcher’s, and the assumption of the same services from Mach to Butcher’s was enough to amount to a service provision change for TUPE purposes.
Mach appealed the decision, and the appeal was dismissed. For there to be an organised grouping, it was sufficient that the Claimant consistently worked with the same people to undertake the same activities for the same company.
CX v Secretary of State for Justice [2025]
The Claimant (CX) had been a prison officer for just over a year, when she was dismissed due to failing her probation. She brought claims for unfair dismissal, sex discrimination, religion/belief discrimination and also mentioned sexual harassment and bullying. She acted as a litigant in person. In one of the earlier preliminary hearings, the Claimant was allowed to amend her claim to add whistleblowing and detriment complaints.
Once the Claimant had viewed the disclosure documents provided by the Respondent (which included HR documentation referring to her mental health), she then attempted to amend her claim again to add in disability discrimination due to her anxiety and depression, and failure to make reasonable adjustments. This was refused on the basis that she would be deemed to be bringing new claims, rather than an amendment. Prior to disclosure, the Claimant had been unaware that her mental health could be classified as a disability, and she had waited four months following that to make an application to amend her claim. The Tribunal did not allow the amendment: The delay before her application to amend had been so long, and the Claimant could not provide a reasonable explanation for that delay. The Claimant appealed to the EAT.
The appeal was dismissed: To allow the amendment would take the tribunal into new and different legal arguments, and so it should be considered as an application for a new claim.
Mughal v Croner-I Ltd [2023]
The Claimant was an HR Advisor working for the Respondent, which is part of the well-known Peninsula Business Services Group. In his role, the Claimant responded to telephone calls from a helpline for CIPD members.
The Claimant had previously undergone surgery following a road traffic accident in 1984, which resulted in his right leg being shortened by around 5cm. As a result, he had severe arthritis. The Respondent agreed that the Claimant was disabled and confirmed that they had been aware of his disability.
The Claimant had an extensive commute, involving car travel, train travel and travel on foot, taking around 1 hour 20 minutes. Notwithstanding that the Claimant encountered many difficulties travelling into the workplace due to his disability, the Respondent gave him an informal warning for being late to work on 4 occasions. After more commuting incidents (including a nasty fall), the Claimant made a flexible working request: That request was to work from home 3-4 days per week, but not as a permanent change, just for 8 – 12 months whilst he had a total hip replacement surgery and during the post-surgery recovery period.
The request was refused on the basis of detrimental impact on the quality of service delivered and the detrimental impact on performance, being two of the eight available statutory grounds for refusal. The Claimant appealed but the appeal was also rejected. He was informed that “The role of the CIPD/HR Adviser cannot be performed effectively from home for the reasons set out”.
The Claimant next sought reasonable adjustments by reason of his disability. The following day, the Respondent called the Claimant to a meeting to discuss his alleged poor performance, then called him the next day to a capability meeting. The Claimant could not attend; in his absence, he was dismissed for poor performance.
The unanimous decision of the Employment Tribunal was that the Respondent had discriminated against the Claimant based on his disability, they had failed to make reasonable adjustments, and failed to deal with the flexible working request in a reasonable manner.
Commentary:
Although this is a first instance decision, it is of interest because, although the Respondent holds itself out as ‘the UK's most trusted knowledge resource for tax & accounting, HR & compliance professionals’ the case demonstrates clearly that even professionals can get employment law very wrong!