In this month's Employment Matters, we cover three interesting cases.
Two are EAT decisions concerning the fairness of dismissals for gross misconduct. In the first, the EAT had to assess whether an employee's dismissal for getting into a fight with a driver from another bus company was fair, in circumstances where another employee involved in a similar incident had been allowed to keep their job. The second concerned an employee who claimed that he was unfairly dismissed for dishonesty when his employer discovered that he had deliberately failed to disclose during the recruitment process that he had previously been dismissed from another role for gross misconduct.
The third and final case is an EAT decision on a claim for indirect sex discrimination by a female employee who was required to travel significant distances for her role, which she said she was unable to do due to childcare difficulties.
Of course, the highly anticipated Court of Appeal decision in the protected beliefs case of Higgs v Farmor's School has received a lot of media attention. We covered this case in a previous alert, which you can read here.
Finally, moving away from case law, we provide an update on the Employment Rights Bill and take a look at some new guidance from the Information Commissioner's Office on keeping employment records.
Gross misconduct: tribunal wrongly substituted its view for that of employer when finding dismissal unfair
In this case, the EAT held that an employment tribunal had been wrong to find that a bus driver who had got into a physical altercation with another driver had been unfairly dismissed, as the tribunal had failed to apply the "range of reasonable responses" test and had substituted its view for that of the employer.
Recruitment: employee fairly dismissed for dishonest failure to disclose prior gross misconduct dismissal on application form
In this case, the EAT held an employer acted fairly when it dismissed an employee for deliberately failing to disclose during the recruitment process that he had previously been dismissed from a prior role for gross misconduct.
Indirect sex discrimination: Tribunal wrong to find that travel requirement put women at disadvantage despite "childcare disparity"
The EAT has held that a tribunal was wrong to find that a requirement to travel significant distances necessarily put women at a disadvantage. Tribunals can take into account the "childcare disparity" faced by women in the workforce but must still assess the actual impact of a policy in the workplace.
Employment Rights Bill Update – government publishes consultation responses and announces significant amendments to the Bill
On 4 March 2025, the Government announced a series of amendments to the Employment Rights Bill (ERB), reflecting its approach to certain key provisions on which it consulted at the end of 2024, as well as further feedback received from businesses and trade unions. Responses to the 2024 consultations have also now been published, alongside 222 pages of proposed amendments to the ERB. Below, we summarise the key changes that employers need to be aware of.
Data Protection: new guidance on keeping employment records
The Information Commissioner's Office has published updated guidance for employers on what they need to do to comply with the UK General Data Protection Regulation and the Data Protection Act 2018 when processing their employees' personal data.
