Employment Law and HR - Update November 2025

(Excluding the Employment Rights Bill which we reported on separately)

November brings significant legislative changes and important case law developments. Here are the key updates employers and HR professionals need to know.

Accent Discrimination: A Growing Cultural Risk?

Accent is not a protected characteristic in its own right under the Equality Act 2010. Protection only arises where an accent is closely linked to a protected characteristic – most commonly race or national origin. Recent cases illustrate the point:

• In Carozzi v University of Hertfordshire, comments about an employee’s “strong Brazilian accent” were held capable of amounting to racial harassment linked to ethnic origin.
• In Machado v Swansea Audio (t/a Coyote Ugly), a Brazilian bartender was told she should not use the microphone because customers could not understand her. This was found to be unlawful racial harassment, as the criticism was tied to her Brazilian accent and therefore her national origin.

By contrast, if the concern had been about a regional UK accent (e.g. Geordie, Scouse or Brummie), the legal position would differ. Regional or social origin is not protected, though persistent behaviour may support a constructive dismissal argument.

There are ongoing calls to extend protection to social class or socioeconomic background, which could in future capture regional accent bias. For now, however, a legal gap remains.

Key lessons for HR

• Treat accent-related comments with the same care as other potentially discriminatory remarks, especially where accents are tied to nationality or ethnicity.
• Focus on objective communication issues rather than how someone “sounds”, using supportive measures as needed.
• Refresh anti-harassment training to cover language-based bias and use recent cases as illustrations.

Whistleblowing: Where Jhuti Stops – Henderson v GCRM

The Employment Appeal Tribunal in Henderson v GCRM Ltd & others has clarified the limits of the Jhuti principle in whistleblowing claims.

• Under s.103A ERA 1996, an employee is automatically unfairly dismissed if the principal reason for dismissal is that they made a protected disclosure.
• In Jhuti v Royal Mail, manipulation behind the scenes by someone with whistleblowing-related hostility can be attributed to the employer.

Whistleblowers also have a separate right under s.47B ERA 1996 not to suffer detriment. Unlike dismissal claims, detriment claims can be brought against individuals – and the Jhuti principle does not apply.

In Henderson, the EAT held that:

• The Jhuti principle does not apply to detriment claims.
• You cannot combine one person’s act with another’s motive to create liability for detriment.
• The s.103A dismissal claim could still proceed against the employer if manipulation existed, but the detriment claim against the individual failed.

Key lessons for HR

• Employers remain exposed in dismissal claims where manipulation occurs behind the scenes.
• For detriment claims, liability depends on the actual motive of the person alleged to have caused the detriment.
• Document clearly who knew what, and when, in whistleblowing scenarios and who influenced decisions.

Holiday Pay and Tips: When “Normal Pay” Must Include Gratuities

Workers are entitled to at least four weeks’ leave paid at “normal pay”. This includes elements intrinsically linked to the work, such as bonuses, commission, compulsory/non-compulsory overtime, regular voluntary overtime and regular allowances.

In Palanki v The Big Table Group, tips paid via a service charge (not a tronc) made up to 50% of the worker’s pay. These were not included in holiday pay. The tribunal held:

• The tips were intrinsically linked to the job.
• Because the employer collected and distributed them, they should have been included in holiday pay.

The outcome may differ where a properly operated tronc is used or where tips are paid directly by customers.

Key lessons for HR

• Review how tips are collected and distributed.
• Check whether holiday pay includes regular employer-paid elements, including tips.
• Consider whether a compliant tronc system may be appropriate.

Substitution Clauses Under the Microscope: BCA Logistics v Parker

Employment status remains high-risk. A genuine right of substitution is key to self-employment, but only if real in practice. In BCA Logistics v Parker, over 400 drivers claimed worker rights. Although contracts allowed substitution, the tribunals found the clause was not genuine because:

• No substitute had ever been used in 25 years.
• Drivers received no practical substitution guidance.
• No arrangements existed for substitute insurance or training.
• Requests to use substitutes were refused.
• Allowing unvetted substitutes was commercially unrealistic.

The drivers were therefore workers, entitled to holiday pay and minimum wage. Under the Employment Rights Bill, the Fair Work Agency may soon impose penalties up to 200% of unpaid holiday pay.

Lessons for HR

• Do not rely on “off-the-shelf” substitution clauses.
• Audit self-employed arrangements and test whether substitution rights are real and workable.
• Where reality points to worker/employee status, consider regularising arrangements.

Working Two Jobs for the Same Employer: Illegality and Fair Dismissal

In Ogumodede v Churchill Contract Services, an employee held two roles totalling 77.5 hours a week. The night shift breached the Working Time Regulations limit on night work. Once discovered, the employer dismissed her.

The tribunal found:

• The employee knowingly participated in illegal performance of the contract.
• Illegality principles prevented her from enforcing an unfair dismissal claim.
• The dismissal would in any event have been fair due to illegality concerns.

Lessons for HR

• Ensure policies cover secondary employment and dual roles.
• Monitor working time where employees hold multiple roles.
• Seek advice in cases of illegality, but remember a dismissal can still be fair if properly handled.

HR’s Role in Disciplinary Processes: Support, Don’t Steer

Tribunals focus on the decision maker’s state of mind at dismissal. This makes it vital to identify the decision maker, ensure they have the right information and avoid inappropriate influence—especially from HR.

In Ramphal v Department for Transport, HR involvement improperly influenced culpability findings. By contrast, in Alom v Financial Conduct Authority, HR’s structured support was permissible because the decision maker remained independent.

Lessons for HR

• Confirm in writing who the investigating and decision officers are.
• Keep HR’s role advisory—focused on law, procedure and consistency.
• Avoid drafting culpability findings or recommending sanctions.
• Use templates and scripts to support structure, not influence conclusions.