Employment Law Update by Fintan Molloy

Mr. A E Madu v Loughborough College [2025] EAT 52

The case concerned Mr. Madu who applied for a part-time lecturer position at Loughborough College in September 2018. He was unsuccessful in his application and subsequently brought a race discrimination claim. The original Employment Tribunal dismissed his discrimination claim and awarded £20,000 in costs against him. The costs order was made on the basis that his claim had no reasonable prospect of success and that he acted unreasonably in pursuing it.

Mr. Madu appealed the costs order. The appeal was initially rejected but later allowed to proceed on limited grounds following a Rule 3(10) hearing. The EAT (Judge James Tayler) ruled that the Employment Tribunal erred in law in several ways:

Assumption about legal advice: The Tribunal incorrectly assumed that once Mr. Madu obtained legal representation, he must have been advised that his claim had no reasonable prospects of success.

Failure to consider difficulties in discrimination claims: The Tribunal did not consider the specific challenges facing Claimants in discrimination cases, particularly the difficulty in assessing prospects of success before hearing the evidence.

Inconsistent reasoning: The Tribunal held that Mr. Madu should have known his claim had no prospects of success while also stating that the Respondent couldn’t be criticised for not applying for strike-out (which uses a similar test) because such an application would have limited prospects of success.

Inadequate analysis of unreasonable conduct: The Tribunal failed to properly analyse the nature, gravity, and effect of the alleged unreasonable conduct.

The appeal was allowed, and the case was remitted to a differently constituted Employment Tribunal for fresh consideration of the costs application.

The judgment is a valuable reminder that the test for costs is the same across all complaint types, but discrimination cases often require special consideration and that litigants in person shouldn’t be judged by professional standards. In discrimination cases, Claimants often face difficulties in assessing prospects of success until evidence is heard.

Respondents should also be mindful that even if a strike out application has limited prospects of success (as acknowledged in this case due to the Anyanwu principles), making the application can serve other purposes:

• It creates a formal record that the Respondent considered the claim to have no reasonable prospects;
• It puts the Claimant on notice about potential costs consequences;
• It may later strengthen a costs application, as the Tribunal would find it harder to criticise a Claimant for not recognising weak prospects when the Respondent itself didn’t attempt strike out.

The judgment also suggests Respondents should issue formal costs warnings rather than assuming they would have no effect. Similarly, although the original Tribunal dismissed the relevance of deposit orders, the EAT’s reasoning suggests seeking one could be valuable – it creates a judicial assessment of prospects and puts the Claimant on formal notice.

The full judgment can be found here: https://www.bailii.org/uk/cases/UKEAT/2025/52.html

Glaucia Pereira v Methods Business And Digital Technology Ltd [2025] EAT 55

This case concerns an appeal by Glaucia Pereira against Employment Judge Rayner’s decisions refusing her application to amend her claim to include protected disclosure detriment/dismissal (whistleblowing) complaints.

In September 2021, the Claimant applied to work with the Respondent as a Technical Architect. During the onboarding process, the Respondent decided not to proceed. The Claimant filed an ET claim in February 2022 for disability discrimination, pregnancy discrimination, and breach of contract. Shortly before the final hearing, the Claimant applied to amend her claim to add two protected disclosure complaints. The first expressed concerns about being asked to discuss classified information without appropriate security clearance; the second, reiterating these concerns to the Head of HR. The Claimant argued that her onboarding difficulties began after these disclosures.

Employment Judge Rayner refused the amendment application on 12 June 2023, finding that the Claimant had not sufficiently identified the protected disclosures, and that no explanation was provided for the delay in seeking to amend her claim. The Tribunal also considered that the balance of prejudice favoured the Respondent due to the unclear and unparticularised nature of the application and that the hearing date would be at risk if the amendment was allowed. A subsequent application to reconsider this decision was also refused.

 The appeal was allowed on three grounds:

The EAT determined that the Claimant had sufficiently identified the protected disclosures. Whilst not of the standard expected from a lawyer, the Claimant’s application did identify two protected disclosures with sufficient detail. Although there were some elements of clarification required, the EAT did not consider that the original Tribunal could reasonably conclude that there was a fundamental failure to plead the protected disclosures.

The EAT also concluded that the original Tribunal incorrectly stated the Claimant provided no explanation for delay, when she had clearly attributed it to discovering new evidence during disclosure showing the timeline of events.

The original Tribunal failed to properly assess the balance of prejudice, particularly as the Claimant had explained why the amendment was necessary for her claim.

The EAT remitted the case to the Employment Tribunal for reconsideration of the amendment application.

Respondents should be wary that disclosure may provide Claimants with grounds for amendment applications. If an application is forthcoming, Respondents should focus on genuine prejudice rather than technical deficiencies when opposing amendments, especially with litigants in person, as the Tribunal will look at whether the substance of the claims are discernible despite imperfect drafting.

The full judgment can be found here: https://www.bailii.org/uk/cases/UKEAT/2025/55.html

For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16

This appeal concerned the interpretation of the Equality Act 2010 in relation to the Gender Recognition Act 2004. The principal question before the Supreme Court was the correct interpretation of the words “sex”, “man”, and “woman” as they are used in the Equality Act 2010. Specifically, the court had to determine whether these terms include a person whose legal sex has been changed by the acquisition of a Gender Recognition Certificate under the Gender Recognition Act 2004 (“GRA 2004”), or whether they refer only to a person’s biological sex as recorded at birth.

The case arose from a challenge by For Women Scotland Ltd, the appellant, against revised statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018. The guidance stated that a person who had been issued with a full Gender Recognition Certificate (“GRC”) confirming their acquired gender as female had the sex of a woman and their appointment would count towards the achievement of the 50% objective for women on public boards. The appellant argued that this guidance was based on an error of law. This was the second judicial review brought by the appellant concerning the definition of “woman” in the context of the 2018 Act.

The court considering the effect of section 9(1) of the GRA 2004, which states that a person’s gender becomes their acquired gender “for all purposes” upon the issue of a full GRC, and whether the Equality Act 2010 makes “provision made” under section 9(3) of the GRA 2004 that displaces the application of this rule. The Supreme Court allowed the appeal and concluded that the Guidance issued by the Scottish Government was incorrect.

The court held that the meaning of the terms “sex”, “man”, and “woman” in the Equality Act 2010 refers to biological sex and not to the acquired sex of a person who holds a GRC.

Section 9(3) of the GRA 2004 allows for the rule in section 9(1) to be disapplied where the words of other legislation, whether enacted before or after the GRA 2004, when interpreted in their context and considering their purpose, are inconsistent with that rule. This disapplication does not require express wording or a strict test of “necessary implication”.

The Equality Act 2010, enacted with knowledge of the GRA 2004, maintains “sex” and “gender reassignment” as distinct protected characteristics. Several core provisions of the Equality Act 2010, particularly those relating to pregnancy and maternity, and other areas like separate and single-sex services, communal accommodation, and sports, would become incoherent or unworkable if “sex” were interpreted to include “certificated sex”. These provisions inherently rely on a distinction based on biological sex.

The court was at pains to stress that the biological sex interpretation of the Equality Act 2010 does not disadvantage trans people, who are protected under the distinct characteristic of gender reassignment, with access to remedies for direct and indirect discrimination and harassment. When handing down the judgment, Judge Lord Hodge stated, “we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not.”

The judgment provides significant clarification as to the meaning of “sex” in the Equality Act 2010. Employers should undertake a thorough review of their equality and diversity policies to ensure that the wording accurately reflects the clarified legal position. However, it would be a mistake to assume that the risk of a discrimination claim from a trans person has diminished. Individuals who are disadvantaged on the grounds of gender reassignment may still bring a claim for discrimination.

The full judgment can be found here:

https://www.bailii.org/uk/cases/UKSC/2025/16.html

This case law update was written by Barrister Fintan Molloy. Fintan has a busy practice with instructions in Civil, Employment, Family and Criminal law. To read more about Fintan, visit his profile here. 

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