Our case law update this month includes the Supreme Court’s landmark ruling in For Women Scotland Ltd v The Scottish Ministers, which clarified the interpretation of “man”, “woman” and “sex” for the purposes of the Equality Act 2010. In Sullivan v Isle of Wight Council, the Court of Appeal looked at whether job applicants could claim whistleblowing protections. Gourlay v West Dunbartonshire Council dealt with the reduction of compensation in the context of an unfair dismissal, victimisation and disability discrimination claim and in Madu v Loughborough College, the issue was the correct level of a costs order made against a claimant.
For Women Scotland Ltd v The Scottish Ministers
A Scottish women’s rights group appealed against a decision that upheld the dismissal of its petition for judicial review of statutory guidance implemented under the Gender Representation on Public Boards (Scotland) Act 2018. The guidance stated that “woman” in that Act had the meaning under the Equality Act 2010 (EqA 2010) and that in the Gender Recognition Act 2004 (GRA 2004), where a full gender recognition certificate (GRC) had been issued to a person that their acquired gender was female or male, the person’s sex was that of a woman or a man respectively. The group argued that the 2018 Act purported to legislate on matters outside of the Scottish Parliament’s devolved competence.
The Supreme Court (SC) concluded that the terms “man”, “woman” and “sex” in the EqA 2010 refer to a person’s biological sex. Although Section 9(1) GRA 2004 provides that a trans person with a GRC is entitled to have their acquired gender recognised for all purposes, Section 9(3) provides that this is subject to provision made by any other enactment or any subordinate legislation. The SC held that the EqA 2010 is inconsistent with Section 9(1) and so Section 9(3) applied. The SC emphasised that this interpretation does not remove protection from trans people, with or without a GRC. Trans people are protected from discrimination on the ground of gender reassignment and are also able to claim direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired gender.
Sullivan v Isle of Wight Council [2025] EWCA Civ 379
Miss Sullivan had unsuccessfully applied for posts with the council. She complained to the council and also later wrote to her MP detailing things that she said had occurred at the interviews and complaining about the activities of a charitable trust (of which one of the trustees was a member of the interviewing panel). The council found her complaint to be unsubstantiated and did not offer her a further review. Miss Sullivan subsequently brought a whistleblowing claim against the council, alleging that she had suffered a detriment as a result of the protected disclosure she had made about its employee’s alleged involvement in a trust with financial irregularities. She accepted that she was not a worker within the meaning of the Employment Rights Act 1996 or an applicant for a post with an NHS employer, which would ordinally mean that she was not entitled to whistleblowing protection. However, she argued that the legislation was incompatible with Article 14 of the European Convention on Human Rights, in so far as it protected workers and applicants for NHS posts but not job applicants generally.
The Court of Appeal held that being a job applicant is capable of constituting some “other status” under Article 14 but that an external job applicant is not in a ‘materially analogous’ position to internal applicants or applicants for NHS posts (who are protected by law). Any difference in treatment is objectively justified because the legislation pursues a legitimate aim and the means adopted to achieve it are appropriate and proportionate. Miss Sullivan had also not suffered any difference in treatment as a job applicant because her complaint to the council had been made as a member of the public and was not connected with possible employment.
Mr Brian Gourlay v West Dunbartonshire Council [2025] EAT 29
Mr Gourlay had multiple sclerosis and diabetes. He was dismissed in 2015 for gross misconduct and brought claims for unfair dismissal, victimisation and disability discrimination. It was agreed by the parties that he had developed a psychiatric illness by the date of his dismissal. Mr Gourlay argued that his psychiatric illness was caused by the employer’s discrimination, and the employment tribunal (ET) accepted evidence that the employer’s failure to make reasonable adjustments had precipitated his illness and that he was permanently unfit for work. The ET reduced Mr Gourlay’s past and future wage and pension loss to reflect the possibility that he would have sought or obtained ill health retirement on grounds unrelated to his psychiatric illness or that his employment would have terminated in 2017 in any event by a mutually agreed termination or by an irretrievable breakdown in working relationships.
Mr Gourlay appealed. The Employment Appeal Tribunal held that the ET was wrong to reduce his discrimination compensation, as the discriminatory dismissal had caused his permanent incapacity for work and the purpose of compensation was to put the employee in the position he would have been in had the discrimination not taken place. A finding that his employment might have later ended lawfully if the dismissal had not occurred was based on speculation and did not justify a reduction in his compensation. A reduction would only be appropriate if a lawful dismissal would also have caused him to be unable to work. The case was remitted to a fresh ET to re-assess compensation.
Mr A E Madu v Loughborough College [2025] EAT 52
Mr Madu brought a claim for race discrimination against the college after failing to secure a part-time lecturer role. He was initially a litigant in person and then obtained legal representation. His claim failed and the college applied for costs. The ET concluded that Mr Madu should have appreciated from the outset that his claim had no reasonable prospects of success and awarded £20,000 in costs against him. He appealed and the EAT overturned the costs order. The ET had made assumptions about what advice Mr Madu had received from his solicitor, which was protected by legal professional privilege. It was therefore wrong to infer that he must have been advised to discontinue his claim. The ET had also failed to consider the difficulties claimants face in assessing the prospects of success in discrimination claims before the hearing, particularly when they act in person. The claim was remitted to a fresh ET for reconsideration.