Top 5 recent workplace developments – February 2025

Here is our selection of key recent employment law developments for employers, HR professionals and in-house lawyers.

1. Neonatal care leave

New right to neonatal care leave and pay.

The government has published regulations confirming that new rights to neonatal care leave and pay will come into force on 6 April 2025. 

The new rights will give parents of babies born on or after that date up to 12 weeks’ leave and pay when their baby needs specialist neonatal care for at least 7 continuous days within the first 28 days of birth. 

Neonatal leave will be a day one right, but parents will need 26 weeks’ continuous service to qualify for neonatal care pay. This leave and pay will be in addition to existing leave entitlements that the parents may have, such as maternity, paternity and adoption leave.

The leave must be taken within 68 weeks of the birth. The new rules do try to build in flexibility around when the leave is taken, but there is some complexity to the way they work. 

Practical point

Review and update your family friendly policies to include provision for neonatal care leave to ensure they provide for at least the minimum statutory entitlements. Look out for our detailed Insight on this for information and practical steps to help you prepare.

The Statutory Neonatal Care Pay (General) Regulations 2025

2. Discrimination: Religious or philosophical belief

The Court of Appeal has ruled that an employee’s dismissal for Facebook posts criticising the teaching of “gender fluidity” was discriminatory.

Mrs Higgs, a School Pastoral Administrator and Work Experience Manager, was dismissed after the school received complaints about her Facebook posts criticising the nature of sex education in school, particularly the teaching of “gender fluidity”. The school considered that someone reading the posts could reasonably consider that she not only believed that gender fluidity should not be taught in schools but also had a negative attitude towards the LGBTQ+ community, and trans people in particular. 

Mrs Higgs subsequently brought claims for discrimination and harassment due to her protected beliefs.

The Court of Appeal found that her dismissal was not objectively justified and amounted to direct discrimination on the grounds of religion or belief. While the language used in her posts was objectionable, it was not “grossly offensive", and her dismissal was a disproportionate response. The Court concluded that there was no evidence that the reputation of the school had been damaged, and the school accepted that there was no possibility that readers of the posts would believe that they represented the school’s views. 

Practical point

This is a significant decision on whether or not the disciplinary action taken by an employer – in this case dismissal – is lawful where the manifestation of an employee’s beliefs may be considered by others to be objectionable. 

These cases are fact specific. The fact that the language used in the posts was not “grossly offensive” was particularly significant. The nature and circumstances of the posts were also significant: they were not written by her, they were reposted; she used her personal account which was in her maiden name (which she did not use at school); there was no reference to the school and, importantly, there was no evidence the school suffered actual reputational damage.

Higgs v Farmor’s School

3. Wellbeing: Neurodiversity

Acas has published new advice to raise awareness of neurodiversity in the workplace.

Acas has published advice, Making your organisation neuroinclusive, to help employers create inclusive workplaces and raise awareness so that talking about neurodiversity is normalised.

Acas recommends that employers:

• Review recruitment processes – provide training for interviewers on neurodiversity and consider allowing applicants to see questions before the interview 
• Train and support managers
• Have a neurodiversity policy - setting out their commitment to neurodiversity inclusion and outlining available support
• Raise awareness of neurodiversity - for example through campaigns, internal networks and staff training

Practical point

The Department for Work and Pensions has launched a new expert panel to improve employment opportunities for neurodivergent people. The panel will focus on identifying actions employers can take to create more inclusive workplaces and break down barriers to opportunity for neurodivergent individuals. Its recommendations are expected this summer.

4. Holiday pay: two-year backstop

A Tribunal has found that the two-year backstop on unlawful deductions claims is unlawful.

Where a worker brings a claim for unpaid holiday pay as an unlawful deduction from wages claim, their claim is limited to two years’ worth of losses dating back from when they brought their claim. 

This is because of Regulations introduced by the government in 2014 after a series of holiday pay cases found that certain types of additional payments should be included in calculations of holiday pay. The purpose of the Regulations was to reduce the impact of holiday pay claims that could otherwise stretch back for many years and therefore be particularly costly for employers.

In a recent decision, an Employment Tribunal has ruled that drivers engaged by Addison Lee Limited in its private hire business are workers and entitled to receive holiday pay and the national minimum wage. 

Significantly, the Tribunal went on to rule that the drivers' claims to unpaid wages (in the form of holiday pay and the national minimum wage) should not be limited by the two-year backstop on unlawful deductions claims. That was because, in the Tribunal’s view, the Regulations that introduced the two-year backstop are unlawful. The Tribunal concluded that the government did not have the power or authority it needed to introduce the two-year backstop in the way it did. 

Practical point

It seems highly likely that this point will be appealed, with the judge accepting that "my conclusion in that regard will be challenged and may be wrong." However, if the decision is upheld by the higher courts, it could enable workers to bring holiday pay claims going back more than two years and prove to be costly for employers. 

The two-year backstop does not apply to holiday pay claims where the worker has been denied any right to paid leave because they have been misclassified as self-employed (under the principle in the Pimlico Plumbers case). This is because these types of claims do not rely on there being a series of deductions. Instead, they are based on the principle that the untaken or unpaid holiday entitlement is carried over from year to year until termination, when a single payment in lieu is due.

Afshar v Addison Lee Ltd

5. Discrimination: Injury to feelings awards

The EAT has ruled that an injury to feelings award of £10,000, for failure to deal with a grievance, was "manifestly excessive".

A few months after Ms Graham informed her employer of her pregnancy, they commenced a redundancy process. She considered that as she was due to start her maternity leave shortly, she had a preferential right to be offered suitable alternative employment (SAE). The employer did not agree that the vacancy was a SAE for her and she was not successful at interview. She twice sent a grievance by email but it was blocked by the employer's firewall. Although she told her employer that her grievance had not been answered, this was not followed up for reasons which the tribunal concluded were materially influenced by her absence on maternity leave. 

She was made redundant and subsequently brought claims including for unfair dismissal and pregnancy and maternity discrimination.

The EAT noted that there had been limited evidence of the extent of Ms Graham’s injury to feelings – she had suffered a "degree of upset" which was fleeting and she had not experienced any adverse effect on her work, personal life or quality of life. It found that the £10,000 injury to feelings award was excessive given the impact of the employer’s actions, and reduced the award to £2,000. 

Practical point

The EAT provided useful guidance on how injury to feelings awards should be assessed. 

Employers should ensure that they deal with grievances raised by employees who are absent on family leave.

Eddie Stobart Limited v Graham