This month we bring you the usual variety of employment law cases from the start to finish of a role, taking a look at what the Home Office expects of sponsors carrying out their duties, to the discrimination faced by disabled job seekers and how they choose to disclose their disability, to more guidance from the EAT as to the test for worker v employee, and lastly, another look at a case of unfair dismissal.
- Immigration: No duty for Home Office to carry out impact assessment before revoking sponsor licence
- Disability Discrimination: Claimant who reasonably believed disclosing disability would harm future career entitled to anonymity order
- Worker Status: EAT gives guidance on test for worker status
- Unfair Dismissal: Court of Appeal finds single incident of touching a pupil was not sufficient to warrant dismissal of school inspector
Immigration: No duty for Home Office to carry out impact assessment before revoking sponsor licence
In R (Prestwick Care Ltd) v Secretary of State for the Home Department and R (Supporting Care Ltd) v Secretary of State for the Home Department [2025] EWCA Civ 184, the Court of Appeal has held that the Home Office is not under a duty to carry out an impact assessment before revoking a sponsor licence. The claimants in the two joint appeals were both care homes which relied heavily on sponsored workers to fill staffing shortages. They had appealed against the Home Office’s decisions to revoke their respective sponsor licences, following a compliance visit to their premises where breaches of sponsor duties were discovered.
The Court of Appeal emphasised that sponsorship is “a privilege not a right” and that there is a “high level of trust placed in the sponsor” to comply with its sponsor duties. Consequently, in addressing the focal point of the joint appeal, the court confirmed that, although the Home Office must conduct their compliance enforcement with procedural fairness, it is not under a duty to carry out an assessment of the impact of revocation on the sponsor, its employees, service users and the wider community, before revoking a sponsor licence. The issue for the Home Office was the impact of the sponsor’s breach of the guidance on the integrity of immigration control, not the consequences for the sponsor and others of removing the sponsorship privilege.
This judgment reinforces the importance of compliance with sponsor duties and the potentially serious commercial and reputational impact on a business of sponsor licence revocation.
Separately, the recent statement of changes to the Immigration Rules (see [ref]) has introduced some protection for the growing pool of care workers and senior care workers who are seeking new sponsorship (because their sponsors have been unable to offer sufficient work or have lost their sponsor licences as in the cases above). From 9 April 2025, sponsors of care workers and senior care workers will be required to recruit from this pool before sponsoring new recruits from other immigration routes or from overseas.
Disability Discrimination: Claimant who reasonably believed disclosing disability would harm future career entitled to anonymity order
In F v J [2025] EAT 34,the EAT has held that a tribunal erred when it refused to grant a claimant’s application for an anonymity order in his disability discrimination claim.
The claimant was an academic who had disclosed his disability to his employer but who had otherwise kept his disability hidden (even from close family members) and did not wish for it to be disclosed publicly. In applying for an anonymity order, the claimant argued that disclosure of his disability would considerably reduce his chances of future employment and, if employed as a teacher, knowledge of his disability among pupils would result in considerable disorder.
The EAT held that the claimant had to meet the relatively low evidential threshold of proving that he had a reasonable foundation for his belief that disclosing his disability would harm his future career. The tribunal had set the bar too high by requiring him to prove objectively that his fears were well grounded. It was inherently impossible to prove what would happen in the future. Medical and psychological evidence could demonstrate the extent of the claimant’s disability but could not address the question of whether it carried the stigma that the claimant asserted. The claimant had produced evidence to support his concerns in the form of experimental research which had assessed the impact of disclosure of disability on employment prospects. Based on the material before it, the EAT found that the claimant’s belief was genuinely and reasonably held.
Addressing the open justice principle, the EAT noted that all of the facts in the case would be set out in any judgment and considered that the identity of the parties was not critical to public understanding. The lay members considered that the interference with the principle of open justice was relatively minor and far outweighed by the claimant’s genuine and reasonably held fears.
The EAT substituted a decision that both parties be anonymised throughout the proceedings. Given the level of detail which was likely to emerge, failure to anonymise the respondent would make identification of the claimant highly likely.
Worker Status: EAT gives guidance on test for worker status
In Ter-Berg v Malde and another [2025] EAT 23, the EAT (HHJ Auerbach, sitting alone) has held that an employment tribunal erred in several respects when deciding if an individual, who had previously been found by the tribunal not to have been an employee, was a worker.
As an initial observation, the EAT remarked that it was “unfortunate” that the tribunal had chosen to deal with the questions of employment status and worker status in separate preliminary hearings. Given the overlap between the tests and the likely relevant evidence, the issues should normally be dealt with together.
The tribunal had also erred by:
- Finding that the “personal service” element of the statutory test for worker status was not met. It had reached this conclusion on the basis that it was bound to do so because of its earlier judgments in relation to employment status. However, the earlier judgments did not actually determine the issue of personal service. On the facts, the tribunal should have held that the personal service element of the test was satisfied.
- Concluding that a finding of worker status would be inconsistent with its earlier judgments on employment status. There was a “lower pass mark” in relation to the test for worker status. While the tribunal’s earlier conclusion that there was not sufficient control to establish an employment contract might be a relevant consideration, it was not determinative of the separate test of whether the claimant was a worker.
- Transferring its conclusions in relation to the parties’ intentions as to whether the claimant was an employee to the question of whether he was intended to be, or was, a worker. Comments suggesting that the claimant was “self-employed” were potentially ambiguous and had to be considered individually to discern their meaning. While the relevant contract had explicitly ruled out employment status, there was nothing to suggest that the parties had considered, or ruled out, worker status.
The case was remitted to a fresh employment tribunal.
Unfair Dismissal: Court of Appeal finds single incident of touching a pupil was not sufficient to warrant dismissal of school inspector
The Court of Appeal has agreed with the EAT in Hewston v Ofsted [2025] EWCA Civ 250that a single incident in which a school inspector had touched a pupil without their consent did not warrant dismissal for gross misconduct.
Mr Hewston had been summarily dismissed without warning from his job as an Ofsted school inspector, following a complaint regarding his conduct towards a child during a school inspection. A group of pupils had come in from the rain and Mr Hewston had brushed water off the hair or forehead of one of them, and put his hand on the child’s shoulder. This had led to a complaint by the school. An employment tribunal found the dismissal fair, holding that Ofsted had conducted a fair and reasonable investigation and had a reasonable belief that his actions amounted to gross misconduct.
The EAT allowed Mr Hewston’s appeal and substituted a finding that the dismissal had been unfair. The Court of Appeal upheld the EAT’s decision. There had never been any suggestion of improper motivation, and the incident had been intended as “a friendly act of sympathy and assistance“. The EAT had correctly asked itself whether, in the absence of a “no touch” policy, it was reasonable for Ofsted to have taken the view that Mr Hewston’s conduct was of a kind which he should have realised would be regarded as warranting dismissal. The EAT had correctly held that it had not been reasonable, since the incident did not raise any safeguarding issue and inspectors had been given no training about touching students.
Ofsted argued that the reason for dismissal had included not just the touching incident, but also Mr Hewston’s subsequent lack of remorse. The Court noted that it would not generally be reasonable for an employer to “bump up” the seriousness of an employee’s conduct just because they fail to show proper contrition or insight during the disciplinary process. This was not a case where there had been a persistent failure to recognise any wrongdoing, giving rise to a real risk of more serious misconduct in the future. Mr Hewston had stated that he would not do anything of the kind again and that he would be willing to undergo training.
Further Information:
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