Employment Edit: 8 May 2025

Single-sex spaces

The Equality and Human Rights Commission has issued an interim update on the practical implications of the Supreme Court’s judgment on the definition of ‘sex’ in the Equality Act 2010. In For Women Scotland v The Scottish Ministers, the Supreme Court determined that the terms ‘man’, ‘woman’ and ‘sex’ in the Equality Act 2010 refer to biological sex.

In its update, the EHRC covers the implications of the judgment including providing some guidance on single-sex toilets and other single-sex spaces. The EHRC explains that it is working on updating its statutory and non-statutory guidance and intends to provide an updated Code of Practice to the government by the end of June for ministerial approval. A public consultation is also expected to be launched in mid-May to help the EHRC understand how the practical implications of the judgment may be best reflected in the updated guidance.

We have been advising a range of organisations on how best to navigate the various sensitive and complex issues related to the judgment, including the employee relations aspects. If you have any queries on the judgment or its impact, please get in touch with your usual Burges Salmon contact or email Luke Bowery.

Employment Rights Bill amendments

The Employment Rights Bill is currently at committee stage in the House of Lords, during which the Lords debate the Bill and consider proposed amendments. On 29 April 2025, the government tabled some amendments to the Bill for the committee to consider.

One amendment, to ensure that certain workers on annualised hours contracts would be covered by the right to a guaranteed hours contract where eligible, was agreed. The other amendments, which the government representative described as technical and clarificatory adjustments, relate to the rights to a guaranteed hours contract and reasonable notices of shifts. These amendments will be considered further as the committee stage progresses, with the committee due to sit again today. We will continue to keep you posted on all things Employment Rights Bill related as things progress – see the link to our Employment Rights Bill handbook below for more information.

Pay for additional hours

A lorry driver was not entitled to be paid overtime for some hours worked in excess of his normal working hours, according to the EAT.

Under the terms of his contract, the claimant was required to work five shifts per week with the intended average shift length being 9 hours (later changed to 9.4 hours). The contract also required the claimant to work such hours on each shift as were necessary for the proper performance of his duties. Overtime only became payable under the contract if the claimant worked an additional half shift. The claimant alleged that he should have been paid for all hours over the intended average, not just where he worked an additional half shift. The tribunal upheld his claim and implied a term into the contract requiring that the claimant would be paid for all hours worked over the intended average.

The EAT overturned this on appeal, concluding that the contract provided for the claimant to receive his basic annual salary in return for 5 shifts per week of variable length. Overtime only arose where an extra half shift was required. The case is a useful demonstration of why it is important that your contracts of employment are clearly drafted and regularly reviewed to check that they mirror the working arrangements on the ground.

(Brake Bros Ltd v Hudek)

Third-party harassment

In the previous edition of Employment Edit, we reported on a letter sent by the Chair of the Joint Committee on Human Rights to the government regarding the third-party harassment reforms in the Employment Rights Bill. Those reforms would introduce liability for an employer where an employee has been harassed by a third party in the course of their employment and the employer failed to take all reasonable steps to prevent the harassment. On 25 April 2025, the government issued its response to the queries raised in the Chair’s letter.

In its letter, which can be found here, the government explained why it does not believe that an ‘overheard opinions’ carve-out is necessary to protect the right to freedom of expression. Such a carve-out would apply where the alleged harassment involved the expression of an opinion on a political, moral, religious or social matter and where certain other criteria are met. In noting that such a carve-out is not necessary, the government stated that any step that would involve a disproportionate interference with a third party’s right to freedom of expression would not be a ‘reasonable step’. It also noted that the preventative steps that an employer can reasonably take in respect of third parties ‘are clearly more limited’ than those it could take in relation to its employees.

Protection against third-party harassment remains a hot topic, and employers will no doubt be following the debate on these provisions closely as the House of Lords continues to scrutinise the Bill this month. We will keep you posted on all key developments.

In-person panel event: Running an effective workplace investigation

19 June 2025 (Bristol) / 25 June 2025 (London)

With workplace investigations becoming increasingly common for many employers, we are pleased to be hosting an in-person panel session on running an effective workplace investigation. This interactive session will explore how to conduct an effective workplace investigation and tackle some of the more challenging issues you might encounter. Check out the registration pages for more details.