Avoiding Reputational Risk

Author: Sophie George

Key contact: Chris Aldridge

In the age of constant connectivity, what employees post online – whether during work hours or not – can have serious implications. For employers with staff members who use social media as a form of activism, as we have seen in the case of Gary Lineker and the BBC this week, the risk of reputational damage is higher than ever. What’s clear is that employers need to understand their rights, limits, and obligations when managing social media and employee misconduct online.

Personal posts, public consequences

While employees have a right to a private life under Article 8 of the Human Rights Act 1998, this right is not absolute, especially where public posts conflict with an employer’s values or damage its reputation.

Even when using personal accounts, employees can face consequences if:

• They are identifiable or linked as employees of a particular organisation
• Their posts conflict with the employer’s code of conduct or policies
• They post discriminatory, offensive, or unlawful content
• Their actions undermine trust and confidence.

Reputational damage and employer liability

Employers are increasingly concerned about the reputational damage arising from social media activity, especially when posts go viral or attract media attention.

Key risks include:

• Negative press coverage: inappropriate or controversial posts by employees may attract media scrutiny, leading to damaging headlines that can harm the public perception of the organisation.
• Client complaints or business loss: clients or business partners may raise concerns or sever ties if they perceive that an employee’s social media conduct contradicts the organisation’s values or brings its professionalism into question.
• Damage to public trust: for organisations operating in highly regulated or trust-sensitive sectors (e.g. finance, healthcare, education), loss of credibility with the public can have long-lasting effects. Trust, once lost, is difficult to rebuild and may affect the company’s ability to attract customers, talent, or investment.
• Internal morale and culture issues: posts that appear discriminatory, offensive or hostile can damage workplace morale. They may also expose the organisation to legal risks under the Equality Act 2010.

In some cases, employers may even be found vicariously liable for employees’ online conduct if it occurs “in the course of employment” or in a work-related context.

Some employers, including NatWest Group, have taken measures as extreme as restricting access to messaging platforms like WhatsApp, Facebook Messenger, and Skype on company-issued devices in the UK to prevent employees from using them to communicate internally and to mitigate against these risks.

Disciplinary action and dismissal

If online conduct breaches workplace policies or affects the employment relationship, disciplinary action may be appropriate.

Employers should:

• Ensure a clear social media policy is in place
• Investigate thoroughly and fairly
• Assess the nature, context, and impact of the post
• Consider mitigating factors (e.g. length of service, intent, remorse).

Where the conduct amounts to gross misconduct, summary dismissal may be justified.

Recent case law insight

The following two examples demonstrate how online activity can have serious consequences, including escalation to an Employment Tribunal.

In the case of Crisp v Apple Retail (UK) Ltd [2011], an employee was fairly dismissed for making derogatory Facebook posts about Apple products, even though his profile was private. The Employment Tribunal found that Apple’s brand reputation justified the dismissal.

Similarly, in the case of Plant v API Microelectronics Ltd [2016] anemployee was dismissed for making a Facebook post criticising her employer, despite having 17 years’ service. The dismissal was upheld because the company had a clear social media policy, and the post breached it.

What employers should do

What steps can be taken to prevent matters like this from escalating to an Employment Tribunal?

1. Have a robust social media policy
   • Clearly outline acceptable and unacceptable use
   • Include expectations for both personal and professional use
   • Reference disciplinary consequences.
2. Provide regular training
   • Help employees understand the boundaries of online conduct
   • Emphasise how posts – even personal ones – can impact the employer.
3. Act fairly and consistently
   • Investigate allegations proportionately
   • Apply the same standards across the workforce to avoid discrimination claims.
4. Balance free speech with business protection
   • Consider whether the post genuinely impacts the employment relationship or the business
   • Avoid knee-jerk responses to social media backlash.

How Acuity can help

Acuity Law advises employers on navigating the legal complexities of social media and misconduct. From policy drafting and training to defending claims or guiding investigations, we help organisations act confidently and lawfully.

For advice or support with any of these issues, contact our Employment team.

Unpacking the Implications of the Landmark Supreme Court Judgment in For Women Scotland Ltd v The Scottish Ministers

Author: Swyn Llyr

Key contact: Chris Aldridge

What do employers need to take away from the Supreme Court’s landmark judgment in the case of For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16? We’ve put together this handy Q&A to simplify the implications and help you stay compliant.

In a nutshell, this judgment provides clarity on the interpretation of “sex” under the Equality Act 2010 (“the EqA 2010”) and offers guidance on how to protect trans employees while ensuring compliance with the law. For a detailed case summary, click here.

How does the Supreme Court’s judgment define “sex” under the EqA 2010?

The Supreme Court concluded that the terms “sex”, “man”, and “woman” in the EqA 2010 refer to biological sex, not certificated sex. This means that a person with a Gender Recognition Certificate does not change their sex for the purposes of the EqA 2010.

What is a Gender Recognition Certificate (GRC)?

A GRC is a legal document which allows an individual to have their affirmed gender legally recognised. This recognition is in line with the individual’s gender identity and expression rather than their sex assigned at birth.

What are the implications of the Supreme Court’s definition of “sex” for your workplace policies?

As a result of the Supreme Court’s clarification, employers must interpret and apply sex-based rights and protections in line with this definition. To remain compliant and ensure fair treatment in the workplace, it is best practice for employers to review and update relevant policies, such as those on discrimination, harassment, and equal opportunities, to reflect the biological definition of sex as outlined in the judgment.

How can you protect trans individuals under the EqA 2010?

The Supreme Court’s ruling does not remove or diminish the protections afforded to trans individuals. Trans people continue to be protected under the EqA 2010 through the provisions related to gender reassignment discrimination.

Employers should therefore ensure that their workplace policies explicitly prohibit discrimination based on gender reassignment, irrespective of an individual’s gender identity. This supports an inclusive workplace while remaining aligned with the legal framework.

Can you investigate or request proof if you are unsure of an employee’s biological gender?

No. Employers should not investigate or request proof of an employee’s gender. Doing so can violate privacy rights and potentially lead to discrimination claims under the EqA 2010. Instead, employers should focus on fostering an inclusive and respectful workplace by accepting employees’ self-identification and privacy.

Importantly, an individual does not need a GRC to be protected under the protected characteristic of gender reassignment. Asking for a GRC when deciding how to treat someone, or whether to exclude them from a service or policy, can itself be unlawful and a breach of privacy. It is also essential not to make assumptions about whether someone is trans based on gender stereotypes, such as clothing or appearance.

What strategies can your business adopt to ensure compliance with the law while treating all employees fairly:

To ensure compliance and uphold fair treatment, employers should adopt the following strategies:

• Familiarise themselves with the judgment’s interpretation that “sex” in the EqA 2010 refers to biological sex, not certificated sex.
• Review and update policies, handbooks, and training materials to reflect the judgment’s interpretation.
• Provide targeted training to HR teams and line managers on the practical application of this definition and the implications for decision-making.
• Respect the privacy of employees, especially in relation to GRCs, and ensure all individuals are treated with dignity and respect.

How should you update your policies to ensure compliance with the clarified definition of “sex”?

Your policies should be updated to reflect that sex-based protections under the EqA 2010 apply to biological sex. Key areas for review include:

• Anti-discrimination policies: clarify that protections on the grounds of sex relate to biological sex and avoid language that inadvertently extends these rights based on acquired gender through a GRC.
• Maternity and pregnancy-related policies: ensure these apply specifically to biological women, covering areas such as pregnancy-related health and safety and breastfeeding accommodations.

How should you handle situations involving single-sex services or facilities?

Single-sex services or facilities should be designated based on biological sex, in line with the Supreme Court’s judgment. While the law permits restricting access based on biological sex, this can be complex in practice:

• A trans individual may present according to their gender identity, which can cause practical and emotional challenges.
• Access to a single-sex space does not automatically extend to trans individuals with a GRC unless there is a justified and proportionate reason. This means that a person who was born male but identifies as a woman does not have a right to use that space or service.

Employers are encouraged to conduct a careful assessment to ensure compliance with the law.

Under what circumstances can we offer a separate-sex service?

A separate-sex service may be provided only where a combined service would be less effective, and offering a separate service is a proportionate way to achieve a legitimate aim – such as protecting the health, safety, or dignity of service users.

The Equality and Human Rights Commission cites the example of a charity offering single-sex homeless hostels for men and women, where mixed accommodation would not meet service users’ needs effectively.

What are the implications of the judgment for your data collection and reporting practices?

In light of the ruling, employers should ensure that data collection and reporting align with biological sex, particularly for areas such as gender pay gap reporting and other equality monitoring activities. Ensuring compliance with the law while respecting employees’ privacy and upholding protections for trans individuals under the characteristic of gender reassignment is of utmost priority.

Whilst For Women Scotland Ltd v The Scottish Ministers has attracted much public attention, the Supreme Court has made clear that the trans community is still protected in law. The implications affect both trans women’s access to single-sex spaces and biological women’s rights to maintain such spaces for safety and dignity. This judgment has generated growing public interest and debate, particularly as its implications become more visible in complex areas, such as sport participation.

For support in drafting, updating, or reviewing your internal policies, please do not hesitate to contact our Employment team.

Kokomane v Boots Management Services Ltd: Actions an Employee Can Take Without Fear of Retaliation or Victimisation

In Kokomane v Boots Management Services Ltd, the Employment Appeal Tribunal (EAT) has emphasised the need for a contextual approach when assessing whether an employee has executed a “protected act” for the purposes of a victimisation claim under the Equality Act 2010. We examine victimisation and “protected acts”, and how to avoid accusations of discrimination when dealing with grievances.

The case

Ms Kokomane raised an initial grievance after being accused of shouting in the workplace, alleging she was being treated differently to colleagues. She later raised a second grievance, complaining that her first grievance had not been acted on and alleging she had been bullied. Neither grievance explicitly alleged race discrimination. However, during the grievance process, the Claimant mentioned that negative stereotypes about black women and shouting may have influenced how she was treated. Ms Kokomane brought a claim of victimisation against Boots Management Services, alleging her grievances were “protected acts” under the Equality Act 2010.

The Employment Tribunal initially rejected the claim, concluding that her grievances did not amount to “protected acts” because they lacked a direct reference to race discrimination.

On appeal, the EAT disagreed and ruled that:

• A complaint need not explicitly reference discrimination to qualify as a “protected act”.
• Tribunals must consider the full context – including what the employer knew at the time.
• The test is: what would the employer reasonably have understood the complaint to mean, in light of the circumstances?

In this particular case, Boots Management Services knew Ms Kokomane was the only black employee and had raised concerns about racialised perceptions during the grievance process.

Practical tips for employers

This decision is a reminder to employers of the importance of recognising and responding appropriately to potential discrimination complaints – even if they are not framed in legal language.

Here’s how employers can reduce the risk of victimisation claims:

• Train managers and HR to spot potential “protected acts” : a grievance or complaint doesn’t need to use the word “discrimination” to trigger legal protection. Staff should be alert to concerns that could relate to protected characteristics.

• Take all grievances seriously and act promptly: failing to act on a grievance – even if it seems vague – can form the basis of a victimisation claim. Ensure there is a consistent, documented process for handling all complaints.

• Avoid treating complainants unfavourably: decisions taken shortly after a grievance – such as disciplinary action or exclusion from opportunities – will be closely scrutinised.

• Keep context in mind: consider what a complaint might reasonably mean, not just what is written. This includes understanding the workplace dynamics and employee relationships.

• Review grievance outcomes and communications carefully: language matters. Be sensitive in how findings are communicated and avoid dismissive or minimising language that might deter future disclosures.

Final thoughts

The Kokomane v Boots Management Services underlines that the threshold for what qualifies as a “protected act” is not as high as some employers might assume. A failure to recognise this can expose businesses to costly and reputationally damaging claims.

If you are unsure whether a complaint might engage legal obligations under the Equality Act 2010, contact our Employment team.

Key contacts: Jenny Wilde

Juliete Franklin

Yesterday’s immigration white paper from the UK government sets out significant reforms aimed at reducing net migration and encouraging the development of a domestic workforce. While these measures seek long-term sustainability, they present immediate and profound challenges for the care sector, which has historically relied on overseas workers to fill critical roles. In this article, we examine the immigration white paper’s implications for the care sector.

1. Closure of overseas recruitment routes

Among today’s potentially most problematic announcements for social care is the government’s plan to phase out overseas recruitment for care workers by 2028, despite well-documented staffing shortages in the sector.

Since 2020, the Health and Care Worker visa has facilitated recruitment of qualified healthcare professionals, including doctors, nurses, and social care workers, to address workforce gaps in the UK’s health and social care sectors.

Instead, the government hopes to stimulate home-grown applications with the promise of a fair pay agreement, aiming to establish legally binding minimum standards for pay, terms, and conditions across the industry. The Employment Rights Bill establishes the Adult Social Care Negotiating Body to achieve agreements that will be enforced by the Fair Work Agency.

2. Stricter visa requirements

• English language proficiency: Adult dependents of foreign care workers will be required to pass English tests for visa extensions and settlement.
• Settlement residency period: The qualifying period for settlement in the UK will rise from five to ten years.

3. Increased employer responsibilities

• Sponsorship compliance: Employers failing to demonstrate efforts to hire UK-based staff may lose the right to sponsor overseas workers.
• Immigration skills charge: A 32% increase in this charge will apply to employers hiring skilled migrant workers.
  

Juliette Franklin, legal director at Acuity Law, said: “These restrictions risk worsening the staffing crisis in the care sector by limiting access to overseas talent, which has been essential in maintaining service levels.

“We anticipate that more and more care businesses risk falling foul of the new regime as they try to keep meeting the needs of their vulnerable patients.”

Jenny Wilde, social care regulatory partner at Acuity Law, added: “In an already challenging environment for care home operators, exacerbated by chaos at the regulator level in England, business owners and managers will not welcome reform that makes operations more difficult.”

Legal support needs for care businesses

To respond effectively to these changes, care businesses will increasingly require expert legal support in the following areas:

• Visa and immigration compliance
  Navigating more complex visa rules and meeting Home Office requirements for sponsorship and documentation.
• Employment law
  Revising contracts and policies to reflect new immigration terms, including settlement pathways and language requirements.
• Workforce planning
  Strategically adapting recruitment models to focus on domestic hiring, apprenticeships, and upskilling initiatives, while remaining compliant with employment law.
• Risk management
  Anticipating enforcement risks and preparing internal policies to avoid sanctions, financial penalties, or loss of sponsorship licenses.

At Acuity Law, we are here to help you navigate the changing immigration and social care landscape. Reach out to our Employment or Regulatory teams for confidential, bespoke advice on staying compliant amid workforce challenges.

A Closer Look for Employers

Author: Emily John

Key contact: Chris Aldridge

The Employment Rights Bill, introduced by the government and currently making its way through the legislative process, has revised its proposed changes to redundancy procedure. Employers need to be aware of these changes, which aim to clarify consultation obligations while increasing accountability for compliance. Below is a summary of the main changes for employers contained in the Employment Rights Bill’s Revised Redundancy Procedures.

Redundancy thresholds and the “establishment” test

Previously, employers were required to engage in statutory consultation if they proposed to dismiss 20 or more employees at a single establishment within a 90-day rolling period. An earlier version of the Bill sought to remove the “establishment” requirement, meaning dismissals of 20 or more staff across an entire organisation would trigger consultation obligations, regardless of where the redundancies occurred.

This raised concerns among employers – particularly those operating across multiple sites – about tracking unrelated redundancies and managing compliance across geographically dispersed teams. The amended Bill has reinstated the requirement for the 20 redundancies to occur at a single establishment. However, it also signals the potential for future rules requiring consultation based on total redundancies across an organisation, even if the threshold is not met at any single location.

Flexible consultation requirements

Under current law, once collective consultation is triggered, employers must consult with employee representatives “with a view to reaching agreement”. The revised Bill allows greater flexibility in how these consultations are conducted. Employers will no longer need to consult all representatives together or seek a uniform agreement across groups.

This change is intended to streamline processes, especially where localised or unrelated redundancies are taking place across different areas of the business.

Changes to the HR1 notification period

Where 100 or more employees are at risk of redundancy, employers are already required to begin consultations at least 45 days before the first dismissal. Until now, however, the HR1 Form – which notifies the government of the proposed redundancies – only needed to be submitted 30 days in advance.

The amended Bill aligns this with the consultation period, requiring employers to file the HR1 Form at least 45 days before the first dismissal occurs.

Increased protective awards for non-compliance

A significant change introduced by the amended Bill is the doubling of the maximum protective award. Previously capped at 90 days’ pay per affected employee, the maximum has now increased to 180 days.

This is intended to act as a strong deterrent against non-compliance with consultation requirements. However, it’s worth noting that many such awards are made against insolvent employers, who may be unable to pay the penalties regardless of their size.

These changes bring both clarity and stricter enforcement to redundancy consultation obligations. Employers should review their redundancy procedures to ensure they align with the amended requirements.

If you need to seek any further advice regarding the Employment Rights Bill’s Revised Redundancy Procedures, please contact a member of our Employment team.

UK Supreme Court rules on the Legal Definition of “Woman” under the Equality Act

Author: Sophie George

Key contact: Juliette Franklin

Today, the UK Supreme Court delivered a landmark judgment in For Women Scotland Ltd v The Scottish Ministers, clarifying the legal definition of “woman” under the Equality Act 2010 (Equality Act).

Summary of case

The case originated from the Scottish government’s guidance on the Gender Representation on Public Boards (Scotland) Act 2018, which aimed to increase female representation on public sector boards. The guidance included individuals with a Gender Recognition Certificate (GRC), recognising them as women for the purposes of the Act.

For Women Scotland Ltd challenged this interpretation, arguing that it conflated the protected characteristics of sex and gender reassignment under the Equality Act, potentially undermining single-sex spaces and services designated for biological women.

Supreme Court’s judgment

The Supreme Court unanimously ruled that the terms “woman” and “sex” in the Equality Act refer exclusively to biological sex, excluding individuals with a GRC from the legal definition of “woman” concerning certain protections and rights.​

The Supreme Court’s ruling emphasised that the Equality Act’s provisions concerning single-sex services and spaces are intended to protect biological women, stating that the inclusion of individuals with a GRC in the definition of “woman” under the Equality Act would be unlawful, as it would conflict with the statutory protections afforded to biological women in single-sex contexts.​

Implications for employers

This decision has significant implications for the interpretation and application of the Equality Act, particularly concerning the provision of single-sex services and spaces. Public bodies and service providers must now ensure that their policies and practices align with the Supreme Court’s interpretation, which may involve revisiting and potentially revising existing frameworks to maintain compliance.​

1. Employment rights and equal treatment

The Supreme Court’s decision underscores that in the context of employment, “woman” and “man” under the Equality Act are defined by biological sex rather than gender identity or gender reassignment. This has particular implications for single-sex roles, facilities, and protections within the workplace:

• Single-Sex roles and services: employers must carefully review any single-sex roles and ensure that they are providing equal opportunities in line with the law. Certain roles, particularly in sectors such as healthcare, domestic services, and safety, may lawfully be restricted to biological women to protect the rights of women in those spaces.
• Single-sex facilities: employers must also assess the provision of single-sex facilities (e.g., bathrooms and changing rooms) to ensure they are complying with the law. The judgment clarifies that the inclusion of individuals with a GRC in these spaces may not always be lawful, especially where the presence of a biological male could undermine the safety or dignity of others.

2. Transgender employees and discrimination protections

The ruling does not impact the existing protections against discrimination based on gender reassignment. Employers must continue to respect and uphold the rights of transgender employees in the workplace. The Supreme Court reinforced that the Equality Act still protects individuals who have undergone gender reassignment or are in the process of doing so.

However, employers must be vigilant in balancing these protections with the specific rights of biological women in single-sex contexts. This may require thoughtful policies and communication to ensure that the rights of both groups are respected.

3. Duties to prevent discrimination

Employers are under an ongoing obligation to prevent discrimination, harassment, and victimisation based on sex or gender reassignment. The ruling highlights the need for clear, comprehensive policies that outline the organisation’s stance on these issues and how employees are expected to behave in relation to single-sex spaces, roles, and facilities.

Practical steps for employers

• Review and update policies: employers should review their equality, diversity, and inclusion policies in light of this ruling. Policies on single-sex services, workplace roles, and facilities should be clarified to ensure compliance with the ruling while respecting the legal rights of both transgender employees and biological women.
• Conduct risk assessments: employers should conduct a risk assessment regarding the impact of this judgment on single-sex facilities, role definitions, and health and safety practices. For example, an employer may need to assess whether the presence of transgender women (individuals with a GRC) in women-only spaces (e.g., bathrooms and changing areas) could create legal or operational issues for the organisation.
• Training and awareness: employers should invest in training for their HR teams and line managers to ensure they are fully aware of the implications of this ruling. This training should focus on how to support transgender employees while ensuring the rights of all employees are protected in line with the Equality Act.
• Consultation with employees:employers should consider engaging with employees through consultations or surveys to assess their views on the application of single-sex facilities and services in the workplace. A transparent and inclusive approach will help foster understanding and respect among workforces.
• Maintain clear communication channels: employers should ensure that employees understand the organisation’s policies on sex and gender reassignment. Clear communication on how the company will handle requests related to gender identity, as well as access to gender-specific facilities and roles, will help prevent confusion and potential legal challenges.
• Seek legal advice: given the complexity of balancing the rights of transgender employees with those of biological women, employers should consult legal experts to ensure their practices comply with the law. In particular, those in industries with high gender-specific roles (e.g., women’s health and sports) should seek specific legal guidance to ensure compliance with both the Equality Act and the Supreme Court’s ruling.

Conclusion

The Supreme Court’s decision has clarified important legal distinctions regarding biological sex and gender reassignment, with significant implications for employment law. Employers must ensure that their policies and practices are up-to-date, clear, and compliant with this ruling. By balancing the rights of all employees, employers can create a fair, inclusive, and legally compliant workplace.

For advice on this issue, or for support with any employment law matters, contact our Employment team.