Frontline UK Employment Law Update Edition 34 2025- Case Updates

1. Afshar and others v Addison Lee Ltd ET/3306435/2020 
2. Eddie Stobart Ltd v Graham [2025] EAT 14
3. Connor v Chief Constable of South Yorkshire Police: [2024]
4. Ms K Kaler v Insights ESC Limited [2024] EAT 195
5. London United Busways v De Marchi [2024] EAT 191 

Afshar and others v Addison Lee Ltd ET/3306435/2020 (LINK)

In this case, the Employment Tribunal (“ET”) concluded that drivers engaged by the Respondent’s private hire business are classed as workers according to the Working Time Regulations 1998 and the National Minimum Wage Act 1998 and are therefore entitled to paid annual leave as well as the national minimum wage. The ET also decided that the two-year backstop on claims for unlawful deductions is unlawful. 

The ET had previously upheld claims by three other drivers in 2017 in which it was decided that they had been engaged as workers by the Respondent. The Respondent’s appeal against this decision was dismissed. Following this, they argued that the 2017 decision should not apply to similar claims brought by hundreds of other drivers after 2017. 

The ET disagreed with this argument, concluding on 7 January 2025 that the drivers were engaged as workers. It decided that drivers who use the Respondent’s vehicles are engaged as workers whenever they are logged into the Respondent’s platform, whereas “partner drivers” (drivers who use their own vehicle or rent vehicles from 3rd parties) are engaged as workers from the point at which they accept a journey request, up until the point at which they have completed or terminated a journey. 

Significantly, the ET also commented on the two-year backstop on unlawful deduction claims. According to section 23(4A) of the Employment Rights Act 1996, introduced by the Deduction from Wages (Limitations) Regulations 2014 (“DWRL”), under powers set out in section 2(2) of the European Communities Act 1972 (“ECA”), workers can only claim for deductions made within the two years prior to the date of the claim. This would significantly reduce the total sum of money that could be claimed by the Claimant drivers. The ET ruled that this two-year limit is unlawful on the basis that the DWRL were outside the scope of the powers granted by section 2(2) of the ECA and therefore were not legally valid.

The DWRL were introduced to reduce the burden on businesses in relation to backdated holiday pay claims. However in order to avoid breaching the EU principle of equivalence, the DWRL apply to all wage claims. Although the government does have the authority to set time limits on enforcing the EU-derived right to holiday pay, the ET found that it exceeded its authority by extending the DWRL rights to all types of wage claims and therefore the two-year backstop is unlawful.

As a first instance decision this is not binding authority, but the finding in relation to the two-year backstop, if confirmed by a higher court on appeal, could have very significant implications for employers dealing with large scale unlawful deductions claims.  

It is highly likely that this decision will be appealed by Addison Lee. 

Eddie Stobart Ltd v Graham [2025] EAT 14 (LINK)

In this case the Employment Appeal Tribunal (“EAT”) considered whether an award for £10,000 for injury to feelings in a pregnancy and maternity discrimination case was excessive. The EAT also set out some relevant considerations when awarding compensation for injury to feelings. 

In March 2022, the Respondent commenced a redundancy process while the Claimant was on maternity leave. After unsuccessfully interviewing for a new role, the Claimant raised a grievance regarding the redundancy process, which she tried to send to her employer twice by email. These emails were blocked and when the grievance was raised in a meeting with HR, it was not followed up. The Claimant consequently brought a claim in the Employment Tribunal (“ET”), focussing largely on the failure to deal with her grievances. Some elements of her claim were successful, and the ET awarded her £10,000 for injury to feelings. 

The Respondent appealed the award of £10,000 stating that it was “perverse” and that the ET had not provided sufficient explanation as to why it had awarded such a large amount. The EAT agreed that the amount was too high and substituted it with an amount of £2,000, stating that the £10,000 originally awarded was “manifestly excessive”. In particular, the Claimant had been unable to provide much evidence to show that she had in fact suffered injury to feelings. 

The EAT made it clear that compensation for injury to feelings requires the Claimant to provide some evidence and emphasised that providing evidence can significantly help a tribunal make an informed decision regarding the amount that should be awarded. When considering the evidence provided, the EAT recommended that an ET consider the following: 

• The Claimant’s description of the injury.
• The duration of the consequences.
• The effect on the Claimant’s past, current and future work.
• The effect on the Claimant’s personal life, or quality of life.

The EAT also provided relevant considerations to be taken into account in cases where little evidence is provided, in particular through focusing on the manner of the discrimination. The following factors may be a useful indication of the level of injury to feelings suffered by the Claimant:

• Whether the discrimination was overt. If the discrimination is overt then there is an increased chance of it causing distress and humiliation.
• Whether there was ridicule and the level of exposure. Where discrimination occurs in front of other work colleagues etc. there may be greater harm caused.
• Whether isolation has occurred as a result of exclusion.
• Whether worry has been caused due to disciplinary threats. 

This case highlights the importance of claimants providing evidence when claiming injury to feelings to allow the ET to make a just and reasoned decision about the amount of compensation that should be provided. Furthermore, it emphasises the need for tribunals to provide a clear and justified explanation for the particular amount awarded. 

Connor v Chief Constable of South Yorkshire Police: [2024] EAT 175 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) considered whether a Claimant relying on a recurrent condition as a disability under the Equality Act 2010 (“EqA”) must provide evidence that the condition had a substantial adverse effect in both the previous occurrence and the current circumstances. The EAT confirmed this need and further highlighted the role of informal medical evidence in such claims.

The Claimant, a civilian employee with the Respondent, was dismissed for accessing pornography on his workplace computers. He cited his health, specifically depression, as a mitigating factor for his misconduct. The Respondent accepted that the Claimant was disabled with depression but argued that this only commenced from the date of his suspension in February 2019 and no earlier. The Claimant, however, argued that his depression was a recurrent condition.

Under the EqA, an individual is disabled if they have a physical or mental impairment that has a long-term substantial adverse effect on their normal day-to-day activities. The Employment Tribunal decided that the Claimant was not disabled with depression until his suspension in February 2019. It also concluded that the dismissal was justified due to the need for maintaining behavioural standards and public expectations. On appeal, the EAT noted that the requirements of 'long term' and 'substantial adverse effect' relate to the effect of the impairment, not merely its existence. Therefore, a Claimant must prove both the past and current existence of an impairment and the recurrence of its substantial adverse effect on their ability to conduct normal day-to-day activities. The Claimant was unable to prove that a previous episode of depression had a substantial adverse effect on him and therefore failed to establish that his depression recurred when he had symptoms in February 2019.

The EAT's judgment also provided guidance on the potential value of informal medical evidence in disability discrimination claims and suggested that formal expert reports (which can be an expensive exercise) may not always be necessary in the “more informal forum of the employment tribunal”, and Tribunals should duly consider relevant evidence from qualified medical professionals.

Where an individual relies on the recurrence of a condition, this case highlights the importance of claimants providing evidence to establish the previous occurrence of the condition and its effect(s). For employers, this case serves as a reminder that informal medical evidence may have significant implications in disability discrimination cases.

Ms K Kaler v Insights ESC Limited [2024] EAT 195 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) examined if an employer is obliged to inquire about underlying medical conditions that may affect an employee's behaviour before initiating disciplinary proceedings, and whether the presence of such conditions can preclude formal action. This case is particularly significant because of its focus on Autism Spectrum Disorder (“ASD”), a condition that can present itself in various ways which may, as in the current case, result in workplace behaviour that is problematic and may lead to disciplinary action.
The Claimant was employed as an English teacher and later as Assistant Vice-Principal by the Respondent, an independent SEN school. Prior to this, she had worked as a supply teacher and had disclosed that she believed she had ASD. She made references to this potential diagnosis during her subsequent employment, including referring to herself as an ‘aspie’.

After her pay was reduced following periods of sickness absence, the Claimant sent a substantial number of abusive emails to the Respondent's senior leadership team and other staff members. Despite the Respondent asking her to stop and providing an explanation as to why her pay was reduced, evidenced by excerpts of her contract and the staff manual, she continued. This led to a disciplinary hearing and her eventual dismissal for gross misconduct.

Post-dismissal, the Claimant claimed direct disability discrimination, discrimination for a reason arising from a disability, and failure to make reasonable adjustments. She argued that her ASD constituted a disability under the Equality Act 2010 and made her prone to 'meltdowns', which influenced her behaviour.

The Employment Tribunal (“ET”) first had to consider whether the school knew or ought to have known about the Claimant's potential disability (known as “constructive knowledge”) and if it did, whether it was therefore on notice that the Claimant had a disability and should therefore have investigated before taking action. The ET decided that the Respondent did not have enough knowledge to conclude that the Claimant might have ASD and therefore her claims failed. It also ruled that even if the Respondent had known about the Claimant’s condition, her conduct was so serious and egregious that her dismissal was justified as a proportionate means of achieving the aims of ensuring appropriate standards of conduct and professionalism in the workplace, maintaining respect and dignity for all employees, and ensuring the health, safety and welfare of its employees. Holding a disciplinary hearing and the Claimant’s subsequent dismissal were therefore a proportionate means of achieving those aims in the particular circumstances of this case.

Upon appeal, the EAT found that the Respondent did have enough information to be aware that the Claimant might have a disability – in particular, in using the word ‘aspie’ she indicated that she either had, or may have, ASD. The Respondent was therefore on notice of a possible disability. However, it agreed with the ET that even if the Respondent had this constructive knowledge and the Claimant had been dismissed for a reason arising from her disability, her conduct was so serious that dismissal was a justified response. The EAT also commented on the task that the ET had of determining “the position in relation to this conduct of this claimant on the evidence before it”. It agreed that there was no medical evidence which supported that the Claimant experienced “blow ups” or “meltdowns” as a feature of her ASD or that writing abusive, threatening and harassing emails arose in consequence of her ASD.

This case shows that there may be circumstances in which dismissing a disabled employee for misconduct will be justified even where it arises from their disability. However, the facts in this case were extreme, and care needs to be taken as there may, on different facts, be circumstances where dismissal for misconduct arising in consequence of a disability may be harder to justify.

London United Busways v De Marchi [2024] EAT 191 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) has shed light on the interaction between various provisions in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). 

The application of TUPE can be complex and subject to interpretation, especially when employees object to a transfer due to changes in their working conditions. The EAT specifically considered:

• Regulation 4(7) of TUPE, under which an employee has the right to object to a TUPE transfer. If they do so, their employment contract is deemed to be terminated but they are not treated as having been dismissed; and
• Regulation 4(9) of TUPE, which allows an employee to treat their employment contract as terminated when a TUPE transfer involves a substantial change in their working conditions to their material detriment. In such circumstances, they are treated as dismissed.

The Claimant, who was a bus driver for the Respondent, objected to his employment being transferred to a new employer under TUPE due to a significant change in his commute time to a new ‘base’ bus depot. Despite being offered alternative work by his original employer (the “transferor”), the Claimant did not accept the proposed terms. The Claimant did not resign or choose to end his contract due to the changes suggested by the new employer (the “transferee”). His employment with the transferor subsequently ended and he brought claims for unfair dismissal and TUPE-related claims.

In an interesting decision, the EAT ruled that an employee’s objection under regulation 4(7) in circumstances where regulation 4(9) of TUPE applies (i.e. the transfer entails substantial changes to their working conditions causing material detriment), prevents the transfer of their contract of employment to the transferee on the transfer date, irrespective of whether or not the employee elected to treat the contract as having come to an end. In those circumstances, the employee is then treated as having been dismissed by the transferor (i.e. the original employer) even though no explicit dismissal took place. In this case, it was reasonable for the Claimant to have objected to the transfer which would have resulted in a detrimental change in his working conditions (i.e. the longer commute time) and as a result, his employment did not transfer.

This ruling effectively means that the transferor (i.e. the original employer) was deemed to have dismissed the Claimant, and the Claimant’s objection to the transfer meant that liability for that dismissal remained with them and did not transfer to the new employer. This decision underscores the importance of the distinction between the general right to object to a TUPE transfer and an objection based on substantial changes in working conditions to the employee's material detriment.

For transferor employers, this ruling is of particular importance. It clarifies that if an employee objects to a transfer under TUPE due to significant changes in their working conditions, the liability for the dismissal may rest with the transferor, even if the employee does not explicitly elect to terminate their contract of employment.

In light of this ruling, transferor employers concerned about similar scenarios should consider obtaining suitable indemnities in the relevant commercial arrangements giving rise to the transfer, as a safeguard. This case serves as a reminder of the complexities of TUPE and the importance of careful consideration and specialist advice when navigating employee transfers and negotiating the commercial agreements that accompany them.