Welcome to Worked Up – your one-stop shop for the latest updates in employment and immigration law.

In this edition, we highlight our recent successful defence of talent directory Spotlight in High Court proceedings brought by trade union Equity, touch on Labour’s planned changes to Indefinite Leave to Remain, consider one-off outbursts at work and whether these are grounds for dismissal, explore a discrimination case which was struck off at a pre-hearing stage, look at the potential liabilities for employers for third parties delivering “controversial” talks to staff, and cover whether making recruitment decisions on “vibes” may amount to discrimination.

If you would like to discuss any of the below updates, please do get in touch. Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.

Shining a spotlight on victory in landmark case of Equity v Spotlight

“Contribution Is a Condition”: Mahmood unveils tougher ILR regime at Labour conference

Playing the “vibe” card: making a pitch for football allegiances to enter into recruitment decisions

Blame it on the speaker? A mic-check for gender critical beliefs

How not to sack your sister-in-law: calling manager an expletive held not to be a sackable offence

No disability? No case. Disability claim dismissed at pre-hearing

If you want to stay ahead of the curve and keep updated on the key employment and immigration changes (including proposed legislation, consultations and case law) on the horizon over the next 24 months, check out our “What’s on the horizon” tracker.

To kick off this issue we’re really proud to share that Wiggin has successfully defended talent directory and SaaS platform, Spotlight, in a landmark High Court case brough by the trade union Equity.

While many of our Film and TV clients will already be aware of Spotlight, for those less familiar, Spotlight has been at the heart of the UK entertainment industry for nearly a century. It began as a publisher producing hard copy directories of entertainment performers and now operates an online directory where performers can publish information about themselves (think headshots, career highlights, skills, etc), which can then be accessed by casting directors.

Despite a long and (previously) positive relationship between Equity and Spotlight, in summer 2024, Equity and members of its council brought proceedings claiming that Spotlight operated as an employment agency under the Employment Agencies Act 1973. This was based on an assertion that Spotlight was in the business of providing services for the purpose of finding persons employment with employers or supplying employers with persons for employment by them.

Had this claim succeeded, it would have resulted in commercial and regulatory implications for Spotlight’s business, despite the fact that it had operated in a consistent, unchallenged and reputable way for almost 100 years.

We’re delighted to confirm that the High Court overwhelmingly found in Spotlight’s favour, with Equity’s claim being dismissed on all fronts. The judge ruled that Spotlight’s directory is “a number of steps away from a service for the purpose of finding persons employment” and instead serves as a marketing tool for performers to promote themselves to casting directors and other hirers.

Equity has indicated they are seeking to appeal this decision to the Court of Appeal so sadly for Spotlight this isn’t quite the end of the story just yet.  We look forward to continuing to fight the good fight though further in the coming months.

Back to top

In her first major address as Home Secretary to the Labour Party conference on 29 September, Shabana Mahmood laid out a bold and controversial vision for reforming the United Kingdom’s path to settlement. Her central message: indefinite leave to remain (or, “ILR”) should no longer be granted purely on the basis of ‘continuous residence’ but must be ‘earned through contribution’.

Key elements of the proposal

Mahmood reiterated the plan (as first confirmed in the recent White Paper) to extend the continuous residence qualifying period from five to ten years. Crucially, however, the Home Secretary is proposing to take this one step further by accompanying this with new, stricter criteria that applicants must satisfy. Most notably, perhaps, is the requirement for applicants to have “truly given back to [their] community, such as by volunteering [their] time to a local cause”.

The announcement indicates that some people will qualify for ILR sooner, based on their contribution, though it is unclear how the different levels of ‘contribution’ will be measured. In other cases, individuals may be barred from ILR entirely: again, it is unclear when this would apply and how this would affect the existing ‘long residence’ route. Most pressingly, the announcement also did not clarify whether current UK residents who are on a pathway to ILR, or their dependants, will be subject to the new criteria.

Commentary and challenges

Mahmood’s speech, which was delivered in Liverpool to a Labour audience, is widely understood to be part of Labour’s attempt to counter the rising influence of Reform UK, whose leader, Nigel Farage, recently pledged to abolish indefinite leave to remain altogether, replacing it with a renewable five-year visa regime. Labour appears to be seeking to occupy middle ground here: presenting itself as tougher on immigration than it has been, whilst rejecting the more radical deportation proposals of Reform UK.

Labour’s new proposal is not without legal and practical complications:

• Retrospective application risk: Some government insiders are said to be considering “emergency” retrospective law changes to prevent a wave of recent arrivals, sometimes dubbed the ‘Boriswave’ (2021–2024), from becoming eligible under current five-year rules. Such retroactive adjustments could face serious legal challenges on grounds of fairness and the rule of law.
• Administrative complexity: Enforcing community volunteering requirements, verifying benefit histories, and judging the ‘quality’ of contribution would require bureaucratic infrastructure and standards that do not currently exist. It also assumes that caseworkers will be trained to ensure that they are adequately equipped to make these assessments.
• Transition rules: Mahmood has stated that the new rules will not apply to those already settled in the UK under existing ILR status. However, exactly how and when the new regime will apply to ongoing visa-holders or applicants is not at all clear.  Thankfully, the government intends to hold a consultation ahead of implementation.

What happens next?

At this stage, this all remains policy rather than law. The government has committed to a public consultation on the reforms before enacting legislation. The timeline for when any new rules might take effect is therefore still uncertain.

For migrants, visa-holders, and those on the path to settlement, the announcement signals a more stringent future regime – one built not just on time served, but on measurable “contribution”. Whether these changes can strike a balance between control, fairness, and practicality will be central to the political, legal, and social debates ahead.

As a first step in respect of this proposed policy, we would encourage our clients to assess their migrant workforce and consider whether any already qualify for ILR, under the current rules. We would be happy to advise further, as required.

Back to top

Miss M Kalina v Digitas LBI Ltd: 2301985/2024

Facts: Ms Kalina, a Russian national, claimed she was discriminated against on the basis of race and disability during the recruitment process by Digitas LBI Ltd. While Ms Kalina made it to the final two candidates for a role at the marketing agency, she was ultimately unsuccessful. She argued that her introverted nature, dislike of pub culture, and failure to engage in habits she perceived as “typically British”, such as swearing, resulted in her being unfairly turned down for a role. The interviewer claimed that the ultimately successful candidate was selected based on them “vibing” more with that person and judged them a better ‘team fit’.

Judgment: The Employment Tribunal (“ET”) ultimately dismissed Ms Kalina’s discrimination claims in their entirety. It held that it is lawful for employers to consider whether a prospective employee would integrate well with the existing team culture, as team fit could amount to a legitimate aim in certain circumstances. In an example which, perhaps, may indicate that the Judge was wearing red under his robes, they stated that in a small workplace full of Arsenal fans, it could be acceptable to choose another Arsenal supporter over a similarly qualified fan of a competing football club if this was genuinely in the interest of maintaining office harmony (honestly, we aren’t making this up!). It was stressed, however, that such judgments must be exercised by employers with caution.

Takeaway: Whilst it’s true that the law permits consideration of team dynamics in recruitment processes, we would urge some caution in applying this decision to your recruitment process as it’s really important that decision makers avoid straying into potential discriminatory territory. Making decisions on a “vibe check” alone is fertile ground for potential discrimination claims, particularly when there is no transparent criteria or processes.

Employers should document their decision-making processes and ensure that their decisions are appropriately communicated and genuinely grounded in fostering team cohesion rather than discrimination. In any event, healthy competition should not be discouraged, and just as a workplace can thrive with the fans of two North London clubs under one roof (at least, if football allegiances at Wiggin are anything to go by), differences should be embraced as a strength rather than something to shy away from.

Back to top

Ms M Newman v Commissioner of Police of the Metropolis: 2305069/2023

Facts: Ms Newman, a police officer for the Metropolitan Police Service (“MPS”), alleged harassment and direct discrimination on the basis of her gender-critical beliefs (which were found to be protected under the Equality Act 2010 in the well-publicised case of Forstater v CGD Europe & Ors). Her complaint stemmed from a “Trans Day of Visibility” event, organised by an internal staff association during work hours and described as inclusive in nature.

Ms Newman joined the event online whilst off-duty, and the event included a speech by external speaker Eva Echo, who made several remarks about gender-critical perspectives, including describing them as ‘twisted‘. Ms Newman felt the positive reception to the speech by MPS attendees, including from senior officers, demonstrated workplace hostility toward her beliefs and found the comments made by Eva Echo to be both shocking and upsetting.

Judgment: The ET rejected Ms Newman’s claims of direct discrimination and harassment. The evidence did not support the claim that MPS’ actions violated Ms Newman’s dignity or created a hostile environment. The ET found that the conduct of external speakers did not render the respondent liable under the Equality Act. It also found that she had voluntarily attended the event out of personal interest and was not required or encouraged to attend. On this basis, the ET found that this case did not meet the threshold for harassment. Furthermore, the ET found no evidence that her subsequent complaint to her employer was treated differently due to her beliefs, thus dismissing the claim of direct discrimination.

Takeaway: This case highlights that employers will not necessarily be held responsible for comments made by external speakers. However, employers should remain alert to potential concerns when hosting events on sensitive or polarising topics, as managing diverse and strongly held views in the workplace is an increasingly significant challenge in an increasingly polarised world. However, it is clear that talks that divide opinion often concern very important matters and should not be avoided; in this respect, we’d recommend employers keep their ear to the ground and seek to balance freedom of expression with fostering respectful environments where possible (which is often easier said than done).

Back to top

Herbert v Main Group Services

Ms K Herbert v Main Group Services Ltd: 3310773/2022

Background

Kerrie Herbert, office manager at Main Group Services, worked alongside her brother-in-law and sister-in-law, Thomas and Anna Swannell. Tensions arose after Ms Herbert discovered internal documents setting out her cost to the business, which led her to believe that she was due to be dismissed. Matters escalated during a heated meeting, where Ms Herbert remarked: “if it was anyone else in this position they would have walked years ago due to the goings on in the office, but it is only because of you two d***heads [referring to the Swannells] that I stayed”.  In response to this remark, Thomas Swannell stated ‘that’s it, you’re sacked’, and, using language that does not bear repeating in a legal update, re-confirmed her dismissal without notice.

Following this meeting, Ms Herbert chose not to engage with a suggested disciplinary meeting on the basis that she was no longer an employee. As such, the company sent her a disciplinary report stating that they had complied with their disciplinary procedure and that she had not filed a grievance or appeal. Shortly after, Herbert received her P45.

Judgment: The ET ruled the dismissal unfair. Although Ms Herbert’s comment was inappropriate, it was a one-off emotional outburst, she had no history of similar behaviour and the outburst occurred during a family meeting. This did not amount to gross misconduct and therefore did not justify instant dismissal. The ET found that Main Group Services failed to follow a fair disciplinary process, describing the subsequent proceedings as “contrived” to give the appearance of procedural fairness. The dismissal was therefore deemed both procedurally and substantively unfair.

Takeaway: This case highlights the importance of retaining professional boundaries in family businesses and reinforces the importance of assessing workplace conduct in context. A one-off inappropriate remark, particularly in an emotionally charged situation, may not justify summary dismissal, particularly in workplaces where such comments are not unheard of. Employers should remind key decision makers of the importance of keeping a cool head when office temperatures rise, as what managers decide to do in the heat of the moment may lead to employment law risks later down the line.

Back to top

JP v Spelthorne Borough Council: [2025] EAT 127

Background: In a case involving an unrepresented claimant referred to as JP, a preliminary hearing was listed to deal with the issue of whether the claimant was disabled for the purposes of the Equality Act 2010, based on a sensitive medical condition she claimed to be suffering from (the nature of which was undisclosed within the case report). Under section 6 of the Equality Act 2010, a person has a disability where (i) they have a physical or mental impairment and (ii) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Judgment: Upon reviewing the evidence, the ET concluded that while the claimant did have impairments that had an adverse effect on her day-to-day activities, these impairments were unlikely to last for at least 12 months or recur, as they related to a work situation that was unlikely to recur. As not all limbs of a qualifying disability under the Equality Act were satisfied, the Tribunal dismissed the claim at the preliminary stage without needing to examine each alleged act of discrimination.

The claimant appealed the decision, relying on Cox v Adecco Group, a whistleblowing case struck out without proper identification of the issues. The EAT rejected this argument. It noted that striking out a whistleblowing claim involves a multi-layered assessment, whereas a disability discrimination claim turns on a single, straightforward question: was the claimant disabled at the relevant time? That question requires only an application of the statutory definition in section 6 of the Equality Act, not a detailed evaluation of the facts.

Takeaway: Tribunals can resolve the issue of whether a claimant is legally “disabled” as a preliminary matter, without needing to first dissect each alleged act of discrimination. It is encouraging that Tribunals are willing to resolve straightforward disability claims early in proceedings, particularly given the year-on-year increase in such claims, as this approach can potentially save both parties significant time and costs at a much earlier stage.  It will be interesting to see if this case encourages more employers to challenge disability status, as such challenges are relatively rare in our experience.

Back to top