In this blog, we provide a roundup of some key employment appeal cases from Spring 2025 and their implications for employers.
Augustine v Data Cars Ltd: less favourable treatment and part-time workers
Augustine v Data Cars Ltd: Mr Augustine was a private hire driver working part-time for Data Cars Ltd, which charged all drivers a flat weekly circuit fee of £148 to access its booking system. He claimed this fee disproportionately affected part-time drivers like himself compared to full-time drivers, amounting to less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
The key legal issue before the Court of Appeal was the test for causation under the Part-time Workers Regulations, namely whether a part-time worker must prove that their part-time status was the sole cause or merely an effective cause of their less favourable treatment.
In a recent decision, the Court found in favour of the respondent, concluding that it is necessary for a worker to establish that their part-time status is the sole cause of less favourable treatment. In coming to this decision, the Court of Appeal upheld a decision by the Scottish Court of Session, McMenemy v Capita Business Services Ltd. Although the judges were divided as to whether the reasoning in this case was correct, they felt bound to follow it for the sake of consistency across different UK jurisdictions.
Given the split decision, the Court of Appeal granted permission to appeal to the Supreme Court, recognising the need to resolve the conflicting interpretations of the Part-time Workers Regulations.
The “sole reason” test makes it harder for part-time workers to prove discrimination. However, despite the Court of Appeal’s decision, this remains an area of legal uncertainty pending a definitive ruling from the Supreme Court. Employers are advised to audit practices to ensure part-time workers are not treated less favourably than full-time comparators, and, where any issues are identified, ensure they can be objectively justified.
Hewston v Ofsted: the importance of clear behaviour rules
Hewston v Ofsted: Mr Hewston, a long-serving Ofsted inspector with a clean disciplinary record, was dismissed for gross misconduct after brushing rainwater from a 12-year-old pupil’s forehead and patting the child on the shoulder during a school inspection. The school reported the incident as inappropriate physical contact, prompting a disciplinary process that led to his dismissal.
The Court of Appeal overturned the Employment Tribunal’s original decision, ruling that the dismissal was unfair due to the absence of clear disciplinary rules or training regarding physical contact. It emphasised that employers, especially in child-facing roles, must provide explicit guidance and training on professional boundaries. The court found that Mr Hewston’s actions, while perhaps ill-judged, did not amount to gross misconduct in the absence of such policies. This case underscores the need for employers to ensure that staff are properly informed of conduct expectations.
Marston (Holdings) Ltd v Perkins: indirect discrimination and the childcare disparity
Marston (Holdings) Ltd v Perkins: Following a restructure, the claimant was required to travel significant distances as part of her role. The claimant had primary caring responsibility for two children and struggled to meet the new travel demands. She was dismissed for redundancy and brought claims of unfair dismissal and indirect sex discrimination, on the basis the travel requirement put her at a disadvantage due to her childcare responsibilities.
The Employment Appeal Tribunal (EAT) found against the claimant. It emphasised that while the general childcare disparity can be judicially noted (ie the courts can accept, without requiring additional evidence, that women are more likely to have childcare responsibility than men), specific evidence is still required to assess the actual impact of the relevant PCP (“provision, criterion or practice”) in practice. In this case, there was no evidence that the travel requirement intrinsically disadvantaged women, meaning the group disadvantage needed to succeed in an indirect discrimination claim was not made out.
Employers must ensure that any job requirements – such as travel or flexibility – are objectively justified and do not disproportionately disadvantage certain groups, particularly those with protected characteristics like sex. To mitigate legal risk, they should conduct and document impact assessments when changing roles or structures.
Wealmoor Ltd v Poniatowski: taxation of injury to feeling awards
Wealmoor Ltd v Poniatowski: Mr Poniatowski, who had a disability under the Equality Act 2010, was dismissed by Wealmoor Ltd after a nine-month absence due to ill health. He succeeded in claims for failure to make reasonable adjustments and disability discrimination, as his employer failed to obtain medical evidence or consider reasonable adjustments before terminating his employment.
While this case demonstrates the importance of employers thoroughly assessing medical evidence, considering reasonable adjustments, and documenting mitigation efforts when managing long-term sickness absences and dismissals, the EAT decision also reiterated important principles about the taxation of injury to feelings awards. If the injury to feelings award stems from the dismissal itself, it is taxable; if it arises from other forms of discrimination unrelated to the dismissal, it is not subject to tax. When the award covers both aspects, the taxable and non-taxable portions should be separated and taxed accordingly.
In other news
Equality law call for evidence
The Government has issued a call for evidence on a number of areas of equality policy in order to identify barriers to opportunity and seek expert views on how to overcome these barriers. This is one of several evidence-gathering exercises aimed at helping shape the Equality (Race and Disability) Bill. The call for evidence closes on 30 June 2025, and details for how to respond can be found here: Equality law call for evidence – GOV.UK. The Government’s consultation on mandatory ethnicity and disability pay gap reporting also remains open until 10 June 2025, and more information can be found here: Government’s consultation on mandatory ethnicity and disability pay gap reporting
Neonatal Care Leave and Pay
The Neonatal Care (Leave and Pay) Act 2023 came into force on 6 April 2025 (further details can be found here: Neonatal care leave and pay: new rights for employees from April 2025). The Government has also published new employer guidance on neonatal care leave and pay: Statutory Neonatal Care Pay and Leave: employer guide: Overview – GOV.UK, along with new guidance from Acas: What the law says – Neonatal care leave and pay – Acas.
For other recent case updates, see:
Supreme Court ruling on the legal definition of a “woman”: considerations for employers
Extending whistleblowing protection to charity trustees
Lessons from the Court of Appeal on navigating protected beliefs in the workplace
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2025
