A short collection of employment law case updates this month. We look at when a whistleblowing claim may be relevant, how a contract can be inside IR35 despite major factors which might otherwise land it outside IR35, and whether union business is carried out ‘within the course of employment’ and therefore whether behaviour at such times is capable of being caught by the Equality Act.
- Whistleblowing: External job applicant could not bring whistleblowing detriment claim
- IR35: Hypothetical contract was one of employment despite lack of notice period or obligation to provide work
- Harassment: Racial harassment of employed union official during discussion about union fees was not committed “in the course of employment”
Whistleblowing: External job applicant could not bring whistleblowing detriment claim
In Sullivan v Isle of Wight Council [2025] EWCA Civ 379, the Court of Appeal has held that the exclusion of job applicants (other than those applying for jobs in the NHS) from the whistleblowing detriment provisions in the Employment Rights Act 1996 is compatible with Article 14, read with Article 10, of the European Convention on Human Rights (ECHR).
In this case, after unsuccessfully applying for two jobs with the respondent, the claimant complained about the interviewers’ conduct. The respondent investigated and found the complaint to be unsubstantiated. However, in breach of its complaints policy, it failed to offer the claimant a further review. The claimant issued tribunal proceedings, arguing that this failure subjected her to a detriment because she had made a protected disclosure and that protection from detriment for whistleblowing should be extended to include job applicants.
Article 14 of the ECHR sets out grounds on which discrimination affecting the rights and freedoms set out in the ECHR is prohibited. There was no dispute that Article 14 applied to the subject matter of the claim which concerned the exercise of the Article 10 right to freedom of expression (in particular, the right to impart information). Unlike the tribunal and EAT, the Court of Appeal held that treatment of a person on the ground that they were a job applicant was capable of being treatment on the ground of some “other status”, one of the grounds on which Article 14 prohibits discrimination.
However, the court agreed with the tribunal and EAT that, as a job applicant, the claimant was not in a materially analogous position to either workers or applicants for NHS posts who were protected by the whistleblowing detriment provisions. The court also held that any difference in treatment would have been objectively justified because it pursued a legitimate aim, and the means adopted to achieve that aim were appropriate and proportionate. Finally, the court agreed with the EAT that the alleged detriment suffered by the claimant had not been connected to her application for a job with the respondent.
IR35: Hypothetical contract was one of employment despite lack of notice period or obligation to provide work
In George Mantides Ltd v HMRC [2025] UKUT 124,the Upper Tribunal (UT) has held that arrangements for providing a doctor’s services to a hospital would have been an employment contract, had the doctor contracted directly (hypothetical contract) rather than through a personal service company (taxpayer), rejecting the taxpayer’s appeal against HMRC’s determination that its income was liable to income tax and national insurance contributions under the intermediaries legislation (IR35). In doing so, the tribunal remade the decision of the First-tier Tribunal (FTT) due to its errors of law in reaching the same conclusion.
The UT’s decision concerned the consequences, following HMRC v Professional Game Match Officials Ltd [2024] UKSC 29, of those errors (as determined in a previous Upper Tribunal decision).
In rejecting the taxpayer’s appeal, the UT reasoned that:
- It was inappropriate to compare the hypothetical contract with one for providing the doctor’s services to another hospital that the FTT had found constituted self-employment, despite both hypothetical contacts being (ignoring the FTT’s errors) similar.
- The FTT’s error, that the hypothetical contract contained an obligation to provide work (either alone or combined with its other error, concerning a one-week notice period), might have made a difference to its decision, but those factors (which related to the mutuality of obligation’s strength at stage three of the RMC test) were not particularly strong pointers towards self-employment, in the context of a short temporary engagement.
- It had to consider the terms and circumstances of the hypothetical contract, including that it would have been for personal service, without a right of substitution and with a sufficient framework of control and mutuality of obligation (in the sense of a wage-work bargain). Other factors were either neutral (degree of actual control) or pointed only weakly to employment (use of equipment and staff and some integration) or self-employment (costs, including insurance, incurred and lack of employee benefits).
The decision might seem surprising, given the importance the FTT placed on the notice and work obligation in distinguishing this contract from the doctor’s other contract on similar terms, but the FTT’s decision on that other contract was not appealed (in time) to the UT.
Harassment: Racial harassment of employed union official during discussion about union fees was not committed “in the course of employment”
In Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust [2025] EAT 42,the EAT has upheld an employment tribunal decision that an NHS Trust was not liable for a racist comment by one of its employees, Mr Hammond, who is white, calling the claimant, Mr Campbell, who is black, a “fucking monkey”.
Mr Campbell, a Trust employee, was Branch Secretary of UNISON. Mr Hammond, another Trust employee, had sought to terminate his UNISON membership, but his subscriptions were still being deducted. He went to Mr Campbell’s office during a break from work to ask for a refund. When Mr Campbell refused, Mr Hammond became frustrated and made the racist comment.
The EAT accepted that, when considering whether Mr Hammond was acting “in the course of employment” for the purposes of section 109(1) of the Equality Act 2010 (EqA 2010), the tribunal had correctly taken the whole context into account. The weight attributed to various factors was a matter for the tribunal and there was no error in its approach. It had noted that there were several connections between the incident and Mr Hammond’s employment by the Trust: it took place during Mr Hammond’s working day, in an office close to his working area, and it related to union membership that entitled him to the support of a union recognised by the Trust and in which Mr Campbell had an important role. However, Mr Hammond’s membership of UNISON was a personal choice and the conversation related to a personal dispute with UNISON.
In the alternative, the EAT also found that the tribunal had not erred in finding that the Trust had taken all reasonable steps to prevent harassment for the purposes of section 109(4) of the EqA 2010. Mr Hammond had attended an induction session emphasising the Trust’s core values, he underwent annual performance assessment which considered whether he acted in accordance with those values, the values were displayed on posters, and he undertook mandatory equality and diversity training, most recently a few weeks before the incident. The two-stage approach advocated in Canniffe v East Riding of Yorkshire Council UKEAT/1035/98, requiring a tribunal to consider any steps taken and whether there were other reasonable steps which could have been taken, was distinguished. In Canniffe, the employer had taken some steps, but in the present case the tribunal had been entitled to conclude that the Trust had taken all reasonable steps.
Further Information
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