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Managing Off-Duty Misconduct: A Guide for Employers

Posted on: September 2nd, 2025 by Natasha Cox

Senior Associate Emma Cocker explores how employers can address employee misconduct that occurs outside working hours, and the legal and reputational implications that may follow, in People Management.

Emma’s piece was published in People Management, on 29 August 2025.

Off the clock, still on the hook? Managing misconduct outside the workplace

As festival season comes to a close, many workers are letting down their hair at the likes of Glastonbury, Reading and Download. For many, attending a festival is the chance to enjoy some music with friends, but for others it can mean excessive drinking, taking drugs and anti-social behaviour.

While some deem their non-workplace conduct irrelevant, for attendees whose transgressions are witnessed by their employers, colleagues or clients, the consequences can be serious. Being seen to be excessively drunk or high is not how most companies want their employees to behave in public. This year, antisemitic chanting put Glastonbury and the BBC front and centre of serious concerns, with Sir Ephraim Mirvis (the Chief Rabbi) attacking the BBC for airing ‘vile Jew hate’ by the punk rap duo Bob Vylan, followed by some extremely disturbing and concerning TV close-ups of some of the audience chanting, “Death, death to the IDF”. 

So, what are the repercussions for the errant few who are caught engaging in such behaviour and how should employers respond?

While not all off-duty behaviour warrants intervention, actions that are criminal, breach company policies, or cause reputational damage, can be grounds for disciplinary measures. Such action will firstly involve a disciplinary investigation to determine whether there is a case to answer. If there is, a disciplinary hearing should take place at which the decisionmaker will consider all relevant evidence before deciding whether and how to discipline an individual.

Factors for employers to consider in relation to off-duty misconduct include whether the employee’s actions affect their ability to do their job, damage the employer’s reputation or create a hostile environment for clients or colleagues. If there is a no apparent connection, employers may struggle to justify disciplinary actions and disciplining an employee for conduct that has no clear effect on the company could lead to legal claims, such as unfair or constructive dismissal.

Possible reputational damage is the consequence most often touted by employers in justification for disciplinary measures. However reputational damage can be difficult to assess, and the potential impact will vary depending on the employee’s role and the particular workplace. Case law has thrown up some surprising results, with employees being held to be unfairly dismissed after carrying out what most would consider to be egregious behaviour.

To avoid claims of unfair dismissal, employers must genuinely believe that the employee has committed an act which either has or may cause reputational damage. They need to be careful in assessing the severity of the misconduct, the actual or potential impact on their business, and the employee’s role. In determining the merits of each case, employers need to navigate the fine line between individuals’ rights to a private life and the workplace, simultaneously maintaining standards and respecting employee rights. Equally, employees need to know where the boundaries are and what their employers expect from them to avoid stepping over the line. As such, employers should develop conduct policies, outlining expected behaviour outside of work, which should be communicated to all employees to ensure they understand their responsibilities. Social media policies should also be developed to draw to employee’s attention the impact of online behaviour on the company’s reputation. Regular training on professional conduct and the potential impact of off-duty behaviour should also be offered. This will help to encourage a culture of respect and professionalism both within and outside the workplace. When problems do arise, employers must monitor behaviour fairly and address misconduct promptly.

To find out more about employer obligations and how we can help, please click here

How Employers Should Navigate the Employment Rights Bill

Posted on: August 19th, 2025 by Ella Darnell

Senior Associate Joanne Leach discusses key takeaways from the Employment Rights Bill, offering guidance for employers on how best to navigate upcoming changes, in FT Adviser.

Joanne’s article was published in FT Adviser, 5 August, and can be found here.

The Employment Rights Bill (ERB) represents one of the most comprehensive and transformative reforms of UK employment law in recent decades, bringing sweeping changes that touch on nearly every aspect of the employment relationship, from unfair dismissal rights and zero hours contracts to trade union access and statutory leave entitlements. It is therefore poised to reshape the employment landscape across all sectors.

The ERB is not a standalone initiative but a central component of the UK government’s broader Plan to Make Work Pay – a policy framework aimed at tackling low pay, poor working conditions, and job insecurity. As outlined in the government’s implementation roadmap, the ERB is designed to raise living standards, support economic growth, and create fairer opportunities across the labour market. By embedding stronger rights and protections into statute, the legislation seeks to ensure that work genuinely rewards effort and provides a stable foundation for individuals and families. It is positioned as both legal reform and a socioeconomic lever for long-term change.

For employers, the implementation of the ERB presents both a significant compliance challenge and a strategic opportunity to modernise workplace practices.

A phased but pressurised rollout

While the ERB was initially expected to receive Royal Assent before the summer recess, it is now likely to be finalised in the autumn session, with further changes still possible during the remaining Lords stages and Commons “ping-pong”.

The government’s roadmap outlines a phased implementation of the ERB, with limited measures relating to industrial action coming into force at the time of Royal Assent and most key measures following in April and October 2026. The most complex reforms, including day-one unfair dismissal rights and protections for workers on zero-hours contracts, are expected to be enacted in 2027.

While this staggered timeline offers a window for preparation, it should not be misconstrued as a reason to delay. The breadth and depth of the changes mean that employers must begin reviewing contracts, policies, and working practices now to ensure they are compliant when the new measures take effect.

The implementation burden: legal complexity and organisational readiness

The ERB’s reforms are far-reaching and will affect every employer, regardless of size or sector. Among the most demanding tasks businesses will need to undertake are:

  1. Contractual variation

Employers will need to revise employment and worker contracts to reflect new statutory rights. This may include changes to probationary periods, new sick pay entitlements which will kick in on the first day of sickness absence, and the introduction of predictable working patterns. For example, workers who regularly work consistent hours over a defined period may have the right to request a more predictable schedule with guaranteed hours. Employers must ensure that contracts are updated to reflect these rights and that any changes are communicated clearly to staff.

  1. Policy changes

Existing workplace policies will require significant updates. Anti-harassment policies will have to be strengthened to reflect new employer duties to take all reasonable steps to prevent harassment, including the harassment of employees by third parties. Redundancy procedures will need to be revised to ensure compliance with the new wider obligation to consult collectively and notify the government when a new company-wide threshold (to be defined in secondary legislation) is met, not just when 20 or more redundancies at a single establishment are proposed within a period of 90 days, as is currently required. Flexible working policies will have to be updated to reflect the ERB’s provisions, which include a requirement that  flexible working requests should be approved unless the employer can reasonably justify refusal on specified business grounds.

  1. Training and culture change

The ERB introduces a wide array of new statutory rights and procedural obligations. However, these reforms are not merely technical adjustments: they will require consistent interpretation and application across all parts of a business. Inconsistent implementation of new rights, such as mishandling flexible working requests or failing to consult properly on redundancies could expose employers to discrimination claims or tribunal proceedings. Line managers and HR professionals will therefore need comprehensive training to understand the new rules. Beyond compliance, fostering a culture of transparency and fairness will help employers position themselves as socially responsible in a competitive labour market.

  1. Administrative burden

The ERB introduces new administrative requirements that will increase HR workloads. For example, employers will find themselves having to track qualifying periods in relation to new rights and respond to requests for predictable hours within statutory timeframes. These tasks will require robust HR systems and processes to ensure compliance and avoid legal risks.

The extension of tribunal time limits: implications for risk management and administrative burdens

The proposal to extend tribunal limitation periods from three to six months under the Employment Rights Bill (ERB) will significantly increase the administrative burden on employers for several reasons:

  1. Longer document retention periods

Employers will have to maintain detailed records for a longer period – potentially up to nine months or more when factoring in Acas Early Conciliation and potential further extensions granted by tribunals. This means employers will need to extend document retention periods and ensure that all relevant communications, decisions, and performance records are preserved well beyond the previous three-month window.

  1. Increased volume and complexity of claims

Giving claimants more time to prepare and submit claims means that employees and their advisers are more likely to bring tribunal claims that might otherwise have lapsed due to time constraints. As a result, employers may face more frequent litigation and a higher volume of Data Subject Access Requests.

  1. Greater pressure on HR and legal teams

This higher volume of claims will lead to HR departments needing to track and manage potential claims over a longer horizon, increasing the workload associated with them. Employers will also need to strengthen internal grievance and appeal procedures to resolve issues early and reduce the likelihood of potential conflicts escalating to tribunal claims. This cultural and procedural shift requires training, policy updates, and consistent implementation across teams

  1. Strategic implications

The limitation extension alters the litigation landscape from a sprint to a marathon. This will require employers to pace their response strategies, allocate resources more sustainably, and remain vigilant over a much longer period of time. Businesses are likely to have to reassess HR budgets and increase insurance cover to account for the heightened risk relating to employment litigation.

Oversight and enforcement

The ERB introduces a more robust enforcement framework, anchored by the creation of the Fair Work Agency – a statutory body with investigatory and enforcement powers. The agency can investigate systemic non-compliance, respond to complaints, and bring tribunal claims on behalf of workers. The ERB also enhances the role of tribunals, giving them discretion to impose higher compensation and penalties.

Employers will also be subject to new record-keeping and reporting obligations, particularly in relation to working time and pay. These requirements are designed to support transparency and facilitate both internal audits and external scrutiny. Failure to comply risks civil penalties, reputational damage, and, in serious cases, criminal liability.

Taken together, these provisions signal a shift from reactive enforcement to a more proactive and preventative model. Employers will need to ensure that HR systems, line management practices, and internal grievance procedures are aligned with the new legal standards, not only to avoid sanctions but to demonstrate a genuine commitment to fair and lawful employment practices.

Key compliance risks and strategies for mitigation

Employers preparing for the implementation of the ERB must be alert to several potential challenges that could undermine compliance, increase legal risk and erode employees’ trust. However, each can be mitigated with proactive planning and clear communication.

  1. Underestimating lead time

Implementing many of the ERB’s reforms will require consultation with staff, particularly where changes affect existing terms and conditions of employment. Employers should begin internal reviews and consultations as early as possible to avoid a last-minute scramble. This includes engaging with employee representatives and trade unions where appropriate.

  1. Inconsistent implementation

Applying new rules unevenly across departments or locations can lead to claims of discrimination. Employers should develop centralised guidance and ensure that all managers receive consistent training. Regular audits and reviews can help identify and address inconsistencies.

  1. Neglecting agency and casual workers

The ERB extends protections to agency workers and those on atypical contracts, such as zero hours or gig economy workers. Employers must ensure that these groups are included in compliance planning and that their rights are respected. This may involve reviewing contracts with staffing agencies and updating onboarding processes.

  1. Failing to engage with consultation

The Government has committed to further consultations throughout autumn and winter 2025 to refine the ERB’s implementation. Employers should consider actively engaging with these consultations to help shape practical guidance and raise sector-specific concerns. Participation can also provide early insights into forthcoming changes and help businesses stay ahead of the curve.

Strategic opportunities for employers

While the ERB introduces new obligations, it also presents opportunities for forward-thinking employers:

  1. Improved retention

Enhanced rights and greater predictability in working patterns can lead to improved employee satisfaction and reduced turnover. This is particularly valuable in sectors that rely heavily on casual or part-time labour, such as hospitality and retail. By offering more stable and supportive working conditions, employers can build a more loyal and engaged workforce.

  1. Competitive advantage

Employers who adopt best practices early will be better positioned to attract top talent and avoid reputational risks. Demonstrating a commitment to employee rights and wellbeing can enhance an employer’s brand and make it a more attractive place to work. This is especially important in a competitive labour market where candidates are increasingly prioritising workplace culture and values.

  1. Legal certainty

The ERB aims to provide clearer rules and definitions, particularly in areas such as working time, redundancy, and dismissal. This can reduce ambiguity and the risk of litigation. Employers who invest in understanding and implementing the new rules will benefit from greater legal certainty and face fewer disputes.

  1. Enhanced employee engagement

By involving employees in the implementation process and responding constructively to their concerns, employers can foster a more inclusive and collaborative workplace culture. This can lead to higher levels of engagement, productivity, and innovation.

Conclusion

The Employment Rights Bill marks a significant shift in UK employment law, with implications for every employer. While the reforms present challenges, they also offer a chance to modernize workplace culture and practices and build a more resilient and engaged workforce. By taking proactive steps now, employers can ensure they are ready for the changes ahead and position themselves for long-term success. Employers who act early, invest in training, and engage constructively with the reforms will be best placed to thrive in the new legal landscape.

Emma Cocker Secures Policy U-Turn at Virgin Active Over Female-Only Spaces

Posted on: August 18th, 2025 by Ella Darnell

Following action by Emma Cocker, instructed on behalf of Michelle Dewberry, Virgin Active has confirmed it will now restrict access to women’s changing rooms to biological females only. This is a reversal of its previous changing room policy which allowed access based on a member’s self-determined ‘gender identity’.

Emma was instructed after Ms Dewberry encountered a man dressed in women’s clothing in the female changing room at her local Virgin Active gym. Feeling vulnerable and uncomfortable, she sought to clarify the changing room policy with Virgin Active staff who confirmed that the changing rooms operated based on ‘self-ID’ and that transgender members could use whichever changing room aligned with their ‘gender identity’. Follow-up correspondence yielded a similar response. Virgin Active later issued a statement:

“In accordance with UK law and industry guidance, we respect the choice of our members to use the changing room facilities based on the gender they identify with. We support and respect all our members and their safety and privacy remains our highest priority. We continue to ensure our policies remain legal, fair and inclusive.”

With support from Sex Matters, Emma sent Virgin Active a Letter Before Claim on the basis that its policy of allowing biological males to access a space labelled ‘female’ contravened the Equality Act 2010. This is because it indirectly discriminated against Ms Dewberry on the basis of her sex and her beliefs and subjected her to harassment related to her sex.

Following receipt of the Letter Before Claim, Virgin Active responded to confirm it would:

  • revise its policies and procedures so that only biological females could access female spaces;
  • update its signage to reflect the above;
  • clarify in its membership rules that ‘sex’ means biological sex, and;
  • provide training to staff to support them (and members) with policy compliance.

Read Sex Matters’ press release here.

What does the law say about single-sex spaces?

The Equality Act 2010 (“Act”) requires each sex to be treated no less favourably than the other. However, the Act does allow service providers to operate single-sex and separate-sex services, such as toilets and changing rooms, when they have a good reason to do so and the limited provision is a proportionate means of achieving a legitimate aim. In other words, the Act makes what would otherwise be sex discrimination (i.e. in the case of women-only spaces, discrimination against men) lawful. It is now well established that women’s safety, privacy and dignity is a legitimate aim and restricting access to biological females will often be a proportionate mean.

While some argue that trans women are women, in the recent case of For Women Scotland Ltd v Scottish Ministers [2025][1] the Supreme Court confirmed that the words ‘man’, ‘woman’ and ‘sex’ in the Act have their biological meaning.

The Court also confirmed that even where an individual has a Gender Recognition Certificate in the ‘acquired’ female sex, they remain a man for the purposes of the Act. The Court noted that, “…many women in a female-only changing room or on a women-only hospital ward or in a rape counselling group might reasonably object to the presence of biological males” and commented that, “it is difficult to see how the reasonableness of such an objection could be founded on possession or lack of a certificate”. As such, it makes no difference whether a person holds a Gender Recognition Certificate and present as the opposite sex; it is now clear that a service provider can only lawfully provide single-sex services and facilities if they do so on the basis of sex (i.e. biological sex, that being the only relevant meaning under the Act).

Why are single-sex spaces important and what should service providers do?

The topic of single-sex spaces has sparked a highly emotive debate. As such, it may be tempting for providers of goods and services to allow people to use whichever space aligns with their chosen identity in an attempt to avoid being labelled transphobic. However (and as recognised by the Courts) for women, access to single-sex spaces is crucial for reasons of safety, privacy and dignity and without such, many women will simply self-exclude from venues and activities.

Businesses and service providers ought to be aware that providing facilities which present as single-sex but operate on the basis of self-ID is unlawful and leaves them open to legal action which is likely to be costly and will cause reputational damage. Further, opting to provide solely mixed-sex facilities may amount to indirect sex discrimination against women who are more vulnerable than men, and are more likely to have their privacy and dignity violated in a mixed-sex space.

As such, it is prudent for all goods and services providers to maintain female, male and mixed-sex facilities where possible. Where that is not possible, providers should not opt for all mixed-sex spaces because they expose themselves to indirect sex discrimination and/or harassment claims under the Act.

If you require advice on how best to manage the issue of single-sex spaces and to protect your business against discrimination claims, contact Emma Cocker.

[1] 2 W.L.R. 879

The Employment Rights Bill: key considerations for businesses

Posted on: July 28th, 2025 by Natasha Cox

With the upcoming Employment Rights Bill progressing towards Royal Assent, Senior Associate Joanne Leach examines the key preparations employers and businesses should consider to ensure their workplace policies are both compliant and productive.

Joanne’s comments were published in ICAEW Insights, 28 July 2025, and can be found here.

“The Employment Rights Bill (ERB) will introduce sweeping reforms to UK employment law, when it becomes law, with phased implementation beginning when the Bill receives royal assent (likely to be in Autumn 2025) and gathering pace in April 2026, through to 2027.

“The Employment Rights Bill is the most comprehensive reform of UK employment law in a generation. For many employers, this won’t just be a policy update – it will require a cultural shift.

“The phased rollout gives employers time, but not an excuse to delay. Reviewing contracts, policies and training now will save significant disruption later.

“One of the biggest risks is inconsistency: applying new rules unevenly across teams or locations could open the door to discrimination claims.

“Handled well, implementation of these reforms could enhance retention, improve transparency, and position businesses as employers of choice. Implementation of the ERB won’t be just about compliance – it will be an opportunity to future-proof workforce strategy.

“The new right to request predictable hours will require a rethink for sectors reliant on casual labour but it also offers a chance to build more stable, engaged workforces.

“Agency workers will see meaningful gains in transparency and protection. Employers must ensure these workers are not overlooked in compliance planning.”

If you would like more advice on the changes brought by this Bill and your obligations as an employer, please contact our Employment team

Navigating the Employment Rights Bill

Posted on: July 25th, 2025 by Natasha Cox

The Employment Rights Bill proposes significant changes to employment law and employers and HR professionals will be required to navigate complex changes over the next two years to ensure compliance with it. This will undoubtedly be a daunting time for all, but the businesses that navigate this period with the most success will be those who proactively take steps early on.

This guide explains what you should be doing and when to ensure that you, as an employer and business owner, can navigate the changes likely to be passed into law in the most effective way. 

Mitigating compliance risks

  1. Audit and update contracts and policies

By completing an HR Audit (including a comprehensive review of all employment contracts, staff handbooks and policies) employers can ensure that the definitions and procedures contained within satisfy the new legal requirements. Particular attention should be paid to clauses and policies that affect part-time, agency, and zero-hours workers, as their rights are expected to be significantly strengthened in the Bill.

  1. Train line managers and HR teams

Education is key to compliance, but while there is a lot of information on the Bill out there, some sources are more reliable than others. By providing proper training to managers and HR teams by those who truly understanding the employment law changes contained within the Bill, employers can ensure that their staff receive accurate information (thus increasing the likelihood of compliance). Any training provided should go beyond the strict legal requirements and include practical scenarios, such as handling flexible working requests, conducting fair dismissals, and interactions with trade unions. As the supporting regulations are introduced, training should be reviewed and updated to ensure it reflects current legal requirements.

  1. Implement a compliance calendar

Creating a timeline that maps out the implementation of the Bill and details the changing requirements, necessary training, and communications to staff, will help achieve a smooth transition.

  1. Engage with consultation processes

As the consultation process on the Bill is ongoing, prudent employers will pay close attention to the government debates. Through keeping a keen eye on its progress, employers will be able to take advantage of any opportunity to partake in industry consultations, ensuring the needs of the sector they operate in are fully considered.

Strategic objectives for employers

  1. Strengthen employer brand

More than ever, employees are holding their employers accountable for how they treat their staff and any breaches of law that may occur. By publishing the proactive steps taken to ensure compliance with the Bill, employers will demonstrate that they are aware of and respect their legal obligations. Not only will this help to mitigate the risk of legal claims, but it will also help to attract high-quality employees. Employers who highlight their commitment to fairness, transparency, and employee well-being will differentiate themselves in a competitive hiring market.

  1. Drive operational efficiencies

The more efficient a business is, the smoother it runs and the more profit it makes. Taking the time to implement the Bill correctly can also provide an opportunity to revisit existing processes to assess their efficiency and determine whether they can be streamlined. By ensuring that standardised documentation and decision-making protocols are in place, the risk of inconsistent practices and associated complaints is reduced.

  1. Foster a culture of trust

Going beyond the strict legal requirements and involving affected employees in the implementation of all changes required by the Bill will help to foster a culture of trust. Open communication, for example, via surveys and focus groups, will create a positive workplace culture.

If you would like more advice on the changes brought by this Bill and your obligations as an employer, please contact our Employment team

Employment Rights Bill: looking to the future

Posted on: July 24th, 2025 by Natasha Cox

Several of the changes in the Employment Rights Bill which are expected to have the most significant impact will not take effect until 2027 at the earliest. As these changes will mark a drastic departure from the current law, sufficient time is needed for meaningful consultation to take place and for the drafting to be finalised. Given the monumental impact they will bring, it is essential for both employees and employers that they are well thought out and communicated, to reduce the risk of misunderstandings and claims resulting from confusion.

Protection from unfair dismissal from the commencement of employment

Currently, employees must have two years of continuous service to be afforded the right not to be unfairly dismissed (except in a limited number of situations known as automatic unfair dismissal). Before this time, employees are not legally entitled to written reasons for their dismissal.

The Bill will provide employees with protection from unfair dismissal from the first day of their employment. However, the protection will not extend to employees who have entered into an employment contract but have not commenced work (subject to some exceptions), including where the dismissal is due to an automatically unfair reason, such as political opinion or affiliation, or a spent conviction.

We expect to see regulations which detail a light-touch dismissal policy during the initial period (the government has expressed a preference for a nine-month period). This is expected to apply:

  • Where the termination date is no later than three months after the end of the initial period, so long as the notice to terminate the employment was provided during the initial period and;
  • The reason for dismissal is capability, conduct, illegality or some other substantial reason.

During this initial period, there will be a different compensation regime for employees who are unfairly dismissed. Where notice is given to terminate the employment after the initial period, employers will be required to provide written reasons for dismissal if requested.

The government has stated its intention to extensively consult on areas of this reform, including the initial period as well as the process required to terminate employment during this time.

Concerns have been raised regarding the time required to implement this change. Last week, the Conservatives brought forward a measure to defeat the proposed day one protection from unfair dismissal. In what appears to be a simpler solution, the House of Lords voted 304 to 160 to support amending the qualifying period to six months. We are yet to see how the Government will respond to this. Day one protection was a key part of the Government’s manifesto and it will have to decide whether a more in-depth review of the system is required, or whether the proposed Conservative amendment will work just as well. There are several factors which could influence its decision-making, including:

  • The Conservatives’ proposal is simpler for employers and employees to understand, which could result in higher levels of compliance. The hope would be that this would, consequently provide clarity, resulting in fewer incorrect cases being brought before the Employment Tribunal and stretching an already overworked resource even further.
  • As there would be fewer changes to implement via the Conservatives’ proposal, less consultation would be required, meaning that it could become law before the end of the year.

Collective consultation

The requirement to adhere to the collective consultation process will be extended to situations where an employer intends to make 20 or more employees redundant at one establishment, or where the threshold test is met. The threshold test has yet to be defined, but we expect it will be based on a percentage of employees being made redundant. It will also not be a requirement for employers to consult with all representatives together, or to reach the same agreement with all representatives.

Gender pay gap and menopause action plan

Whilst it can be introduced voluntarily in 2026, it will be mandatory from 2027 for employers with 250+ employees to report on their plans to reduce the gender and menopause pay gaps in their company. There will be penalties for non-compliance.

From 2027, employers will also have to include contract workers in their gender pay gap reports.

Enhanced protection for pregnant women and new mothers

Currently, women who are at risk of redundancy have the right to be offered any available suitable alternative employment, once they inform their employer they are pregnant, or if their expected date of childbirth was less than 18 months ago.

The Bill intends to introduce regulations which shall cover protection from other dismissals taking place during pregnancy, maternity leave or following a return to work (for a period of six months).

Further harassment protections

Employers are already expected to take all reasonable steps to prevent sexual harassment – what these steps actually look like are expected to be specified in 2027.

Bereavement leave

Unless an employee’s child dies under the age of 18 or is stillborn after 24 weeks of pregnancy, there is currently no statutory right to bereavement leave. The Bill intends to introduce a ‘day one right’ to at least one week of (unpaid) bereavement leave for employees. Regulations will define the relationship between the employee and the deceased. 

Zero hour contracts

Currently, employers are permitted to engage individuals on zero-hour contracts, provided they do not prevent the individuals from working for another employer.

The government had promised to introduce a ban on ‘exploitative’ zero-hour contracts, but the Bill does not actually go that far. Instead, it gives those on zero-hour contracts the right to a guaranteed-hours contract if they work regular hours over a defined period. Once an employee establishes a pattern of regular working over a 12-week period, employers are obliged to offer regular hours. Should an individual wish to remain on a zero-hour contract, they can. 

These amendments would provide individuals with security while allowing them to remain on a zero-hours contract if they prefer, and will also apply to agency workers. The details of this amendment will be contained in secondary legislation and therefore, it is possible that the length of the reference period, exceptions to the rights and conditions for qualifying for this protection may change in the coming months.

However, on 2 July 2025, during a debate in the House of Lords, the majority voted in favour of altering this requirement from a duty to offer guaranteed hours to a right for workers to request guaranteed hours, with an obligation on employers to grant such a request.

The Bill also proposes that workers on these contracts will be entitled to ‘reasonable’ notice of any shift changes, as well as compensation if a shift is cancelled or cut short. However, the House of Lords again voted for this to be altered to ‘short notice’, requiring that if a shift is cancelled on less than 48 hours’ notice, compensation would be paid.

Access to flexible working

Employees are entitled to make flexible working requests from the first day of their employment and there is no limit to the number of requests which can be made. Under the Bill, should an employer refuse an application, it will now have to explain the reason for the refusal and why it considers its decision reasonable. There is no change to the penalty for breaching the requirements of how to deal with a request, which remains 8 weeks’ pay. It may be that the second draft, or draft regulations, includes guidance on what steps an employer should take before refusing a request.

If you would like more advice on the changes brought by this Bill and your obligations as an employer, please contact our Employment team

Employment Rights Bill 2025: strengthened protection for workers

Posted on: July 23rd, 2025 by Natasha Cox

The Bill will introduce several significant changes in October 2026. While a number of these changes are still subject to consultation, the aim is clear: to strengthen protection for workers. These changes will drastically alter employers’ obligations towards their staff, increasing the risk of non-compliance if employers fail to educate themselves, which in turn brings financial and reputational risks.

Reforms to ‘fire and rehire’

While there have always been reputational and industrial relations risks associated with the practice of fire and rehire, it is a lawful practice.

The Government had previously indicated that the Bill would abolish fire and rehire. This quickly became so that it would significantly restrict its use.

It is expected that the Bill will make dismissing an employee for refusing to agree to a contract variation about key contractual terms automatically unfair. The key contractual terms are expected to include pay, working hours, pension, time-off rights, and others. It is expected that the regulations which shall accompany the Bill will define ‘key contractual terms’

However, the restrictions will not be all-encompassing. Where there is a genuine need to avoid serious financial issues that may threaten a business, employers may still be permitted, after a detailed and thorough consultation, to exercise the practice of fire and rehire.

The government intends to review the code of practice in the autumn, following an exercise to collect views on the proposed amendments. Following this, the changes are expected to take effect in October 2026.

Fair Pay Agreement – adult social care

The adult social care industry is notoriously a low-paid sector. The Bill aims to enhance the market by introducing the Adult Social Care Negotiating Body (the ‘Negotiating Body’), which will be responsible for negotiating pay and terms and conditions for care workers. The Negotiating Body will comprise trade union representatives and employees working in the sector. The hope is that the introduction of the Fair Pay Agreement will address current recruitment and retention challenges in the industry. However, this change shall come with increased costs for employers who should expect to pay higher salaries and provide better working conditions.

Allocation of tips

From October 2021, over two million workers have seen an increase in the amount of money they take home each month. This was after the introduction of the Employment (Allocation of Tips) Act 2023, which requires employers to ensure that all qualifying tips, gratuities, and service charges are passed on to their workers without deductions (excluding statutory deductions).

The Bill will require employers to consult with trade union or elected representatives (or the workers directly) before publishing the first version of a written policy on the allocation of tips. The policy will need to be reviewed every three years, and employers will need to conduct anonymous surveys on how tips are allocated to ensure that workers feel free to speak up about any issues they consider unfair.

Prevention of sexual harassment

From 26 October 2024, employers have been under a duty to take ‘reasonable steps’ to prevent sexual harassment in the workplace. Reasonable steps include creating a policy on the standards of behaviour expected and what employees can do if this standard is breached, providing training, and undertaking risk assessments. The Bill extends the steps that must be taken to ‘all reasonable steps’ and gives the government the power to define ‘all reasonable steps’ in regulations. We await further information on these regulations.

Third-party harassment

Currently, employers are not explicitly/directly liable for harassment their employees are subjected to by customers/clients/other third parties. The Bill will change this position, making employers liable for third-party harassment, including sexual harassment, unless they took all reasonable steps to prevent it.

Trade union measures

Presently, trade unions do not have the right to access the workplace to recruit or organise members unless an employer agrees to provide access or it is ordered to do so by the Central Arbitration Committee.

The Bill is expected to provide trade union officials with greater access and improve trade unions’ ability to support and advocate for their members by:

  • repealing the requirement of minimum turnouts in strike ballots and minimum service levels during industrial action (which was only recently introduced by the previous conservative government);
  • requiring employers to remind workers in their terms of employment (section 1 statement) that they have the legal right to join a trade union. Employers will also be required to remind workers of this right regularly;
  • providing trade unions with a right to access workplaces in a regulated and responsible manner to meet, represent, recruit, and organise members;
  • reforming various aspects of existing trade union law to:
    • eliminate restrictions on trade union activities;
    • make ballots simpler and more flexible (including electronic votes);
    • stop the replacement of strikers with agency workers; and
    • reduce the threshold of support required for trade union recognition and simplify the statutory recognition process;
  • creating provision for improved resources, time for trade union reps to perform their duties; and
  • introducing new protections for trade union equality reps and against trade union-related intimidation and dismissal.

Extending tribunal time limits

The majority of employment tribunal claims must be brought within three months, minus one day, of the date the act complained of occurred. This has been viewed, for some time, as a relatively short period compared to disputes in civil courts, and potentially prejudicial to the pursuit of justice.

The Bill will extend the time limit to bring claims to six months. It was anticipated that this would apply to all claims. However, breach of contract claims have been omitted from the proposal. This may be a typo and inadvertent omissions, but only time will tell.

The extension of the deadline is expected to result in more employees bringing action against their employers. Therefore, employers must stay up to date with changes in employment law to mitigate the risk of litigation.

If you would like more advice on the changes brought by this Bill and your obligations as an employer, please contact our Employment team

The Employment Rights Bill: what comes next?

Posted on: July 22nd, 2025 by Natasha Cox

What happens next?

It is anticipated that six months after the Bill receives Royal Assent and the first amendments are implemented, the second wave of changes will take place. These changes will have a substantial impact on how employers manage the day-to-day operations of their businesses.

Collective redundancy

Currently, when an employer proposes to make 20 or more employees at one establishment redundant within 90 days, it must comply with the requirements of collective consultation. A failure to do so could result in a protective award of up to 90 days’ pay.

From April 2026, the protective award is expected to double to 180 days’ pay, per employee. The increased costs on employers for failing to comply with legislative requirements are hoped to reinforce that compliance is not optional. Redundancy, especially collective redundancy, remains a complex area of employment law. Proactively seeking legal advice proactively is essential to ensure legal compliance and protect the business.  

‘Day one’ paternity leave and unpaid parental leave

The current law requires employees to have one complete year of service to be eligible for parental leave and 26 weeks (assessed 15 weeks before the expected birth week). The Bill proposes removing the qualifying period so that the entitlement to leave becomes a right from the first day of employment. As more and more individuals become entitled to leave from the first day of employment, businesses will need to review how they operate on a day-to-day basis to ensure that these periods of leave do not adversely affect their staff by increasing their workload to unmanageable levels.

Whistleblowing protections – Sexual harassment

In October 2024, employers were required to take steps to prevent sexual harassment.

The Bill will introduce a protection for those who make disclosures of sexual harassment. By making disclosures about sexual harassment that has occurred, is occurring or is likely to occur a ‘protected disclosure’, the Bill protects those who make such disclosures from detriments, up to and including dismissal, under whistleblowing protections. Any dismissal in retaliation for making a protected disclosure shall remain automatically unfair.

Fair worker agency

The minimum standards to which employees are entitled are currently governed by their respective authorities. For example, HMRC monitors if employers are paying the national minimum wage.

From April 2026, we expect to see the introduction of an independent enforcement body, the Fair Worker Agency (‘the Agency’). The powers of the Agency will extend beyond merely enforcing the minimum standards to which employees are entitled. It shall also have the power to bring proceedings in the Employment Tribunal for employees who are unwilling to, or unable to, themselves. Throughout litigation, the Agency will provide legal assistance, support or representation to litigants in person. Where the Agency brings or assists in a successful claim, it shall be able to recover its costs from the employer.

The introduction of the Agency aims to improve business compliance with employment legislation. Employers’ practices will be under more scrutiny than ever, as individuals become increasingly educated about their rights and entitlements. Businesses should conduct regular HR audits to ensure they remain compliant with the ever-evolving employment laws. 

Statutory sick pay

Currently, employees are only eligible for Statutory Sick Pay (SSP) if they meet the following eligibility criteria:

  1. earn an average of at least £125 per week; and
  2. are ill for more than three days in a row (including non-working days).

The proposed changes will result in more employees being eligible. For the first time, all workers will be entitled to SSP, as the lower earning threshold has been removed, along with the three-day waiting period. Individuals will be entitled to SSP from their first day of illness, provided they are ill for two or more consecutive days. Therefore, the costs to employers will increase – prudent employers will be vigilant about workload and workplace practices that contribute to illness, in order to prevent individuals from becoming sick. They will also need to review their long-term absence policies and take proactive steps to facilitate a return to work.

Trade union measures

To modernise the balloting of union members and streamline processes, the bill will introduce ‘e-balloting’ and make the preferred use of electronic mail. The hope is that by improving efficiency, trade unions shall be able to provide improved and quicker support for their members.

If you would like more advice on the changes brought by this Bill and your obligations as an employer, please contact our Employment team

The Employment Rights Bill: The journey so far

Posted on: July 21st, 2025 by Ella Darnell

The Employment Rights Bill – the journey so far

Published in October 2024, the Employment Rights Bill (‘the Bill’) introduced 28 significant changes to transform employment law. The changes are comprehensive and will transform many aspects of employment. Affecting all industries, the Bill will impact all employees, and every business which engages workers.

As a key component in the Government’s ‘Make Work Pay’ plan, the aim of introducing the bill is simple, to improve employment rights for workers. The proposed changes are hoped to help more people stay in work and consequently for living standards to be improved. This week, we shall be publishing a series, taking each of the implementation stages in turn to explain the anticipated changes, concluding on Friday with considerations as to what employers can do to prepare.

Since October 2024, the Bill has made its way through many of the required stages, and on 1 July 2025, the government published a roadmap for its delivery. Most recently in parliament on 7 July 2025, the Bill is currently in the final stages in the House of Lords (the Report stage). Once the Bill is passed by the House of Lords, it will return to the House of Commons for consideration of the amendments made.

The projected road map provides employers with advanced warning of the order and dates the changes shall come into effect. While the implementation dates and the anticipated changes to the law may alter, proactive and prudent employers will take this time to educate themselves on what is expected, in order to ensure it is fully prepared. The saying “fail to prepare, prepare to fail” has never felt more relevant to employment law.

The roadmap

The Bill is expected to receive Royal Assent in autumn this year, and as early as September. As the first week of school summer holidays is upon us, and many employers are working with a reduced workforce, it is imperative that the upcoming changes are not overlooked and preparation is not postponed.

Whilst there is no guarantee the Bill will receive Royal Assent as planned, as the biggest changes proposed come from within the Government, it is hoped that they will not delay the Bill’s implementation. Employers must keep abreast of the immediate changes and developments as well as those expected in April 2026, and subsequent changes in 2027. to ensure compliance and reduce the risk of complaints and litigation.

Immediate effect and winter 2025

Repeal the Strikes (Minimum Services Levels) Act 2023 and the majority of the Trade Union Act 2016

Only recently introduced by the previous Conservative Government, the Strikes (Minimum Service Levels) Act 2023 provided the government the right to set out the minimum service level to be provided during strike action in the following industries:

  • Border security;
  • Decommissioning of nuclear installations and management of radioactive waste and spent fuel;
  • Education services;
  • Fire and rescue services;
  • Health services; and
  • Transport services.

The Trade Union Act 2016 introduced a number of restrictions on strikes, including restrictions on picketing, higher ballot thresholds and the requirement to provide longer notice periods.

The Bill is currently being amended to including provisions the Government consulted on in December last year in relation to simplify the information unions will be required to provide employers in relation to industrial action. We await confirmation of what the simplified information shall be. By reducing the information required, it is hoped that the scope for employers to request injunctions preventing industrial actions on the basis of a union’s failure to comply with the legislative requirements is reduced.

The Strikes (Minimum Service Levels) Act 2023 shall be repealed as soon as the Bill receives Royal Assent as will the majority of the Trade Union Act 2016, without consultation.

Protection for taking part in industrial action and being a trade union member

The Supreme Court recently held in Secretary of State for Business and Trade v Mercer that an employee who participates in industrial action is not protected from detriments short of dismissal for doing so.

As currently drafted, the Bill would introduce protection from detriments short of dismissal for employees who take part in industrial action. The rights of representatives of recognised trade unions would also be increased, to enable them to better support their members. Adding to a representative’s current right to paid time off, they would also be provided with reasonable facilities and accommodations to carry out their duties.

Consultation as to the protections and rights of trade unions are expected to begin as soon as winter 2025 with an intended implementation date in October 2026.

If you would like more advice on the changes brought by this Bill and your obligations as an employer, please contact our Employment team

Ethnic abuse in the workplace – a practical guide for employers

Posted on: July 18th, 2025 by Natasha Cox

Under the Equality Act 2010, employers are legally required to protect their employees from abuse or discrimination related to ‘protected characteristics’. There are nine protected characteristics: age, disability, gender reassignment, marriage, pregnancy, race, religion or belief, sex and sexual orientation.

Discrimination can take several forms, including:

  • Direct discrimination: treating someone less favourably simply because they hold a particular characteristic;
  • Indirect discrimination: treating everyone the same, which results in an adverse effect on people with a particular protected characteristic (which cannot be justified);
  • Harassment: unwanted conduct related to a protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment; and
  • Victimisation: subjecting someone to a detriment because they have done (or will do) something in connection with the Equality Act 2010 (including make complaints about discrimination).

Ethnic abuse in the workplace

We were recently instructed by an individual who was subjected to serious and disturbing abuse by her colleagues, based on her ethnic background and assumptions about her political opinions. There was no evidence to support any of these contentions, which had been circulated within the workplace as if they were fact. This conduct constituted discrimination, bullying and harassment. We were able to negotiate significant compensation for our client in relation to these potential claims, which would have caused reputational damage to her employer if they had been contested in an open tribunal.

Practical advice for employers

Abuse on the basis of ethnicity may manifest through offensive remarks, exclusionary behaviour, or more overt acts of hostility. Employers must be alert to the ways in which global events can trigger or exacerbate such conduct in the workplace, as they increasingly influence interpersonal dynamics and employee relations within diverse workforces.

The war in Ukraine, Israeli action in Gaza and the conflict between Israel and Iran are fuelling heightened sensitivities in UK workplaces. Employers must take steps to safeguard employees from discrimination, harassment, victimisation, or unfair treatment based on their religion, national origin and/or perceived political stance.

To minimise risk of Equality Act 2010 claims, employers should aim to provide a safe and inclusive work environment in which employees are able to feel comfortable raising concerns. Employers should avoid stereotyping or making assumptions about employees based on nationality. Indeed, they can help to prevent this by offering training on unconscious bias and cultural sensitivity.

Employers are advised to:

  • review and reinforce anti-discrimination and anti-harassment policies with a particular emphasis on preventing xenophobic or politically charged behaviour, including by promoting respectful dialogue in the workplace;
  • train managers in how to handle sensitive conversations and communications in a way which balances competing rights and freedoms;
  • monitor for signs of workplace tension or exclusion based on perceived religion, national origin or political or religious affiliations;
  • handle any grievances linked to political or religious tensions robustly;
  • manage reputational risk where employee conduct or public statements intersect with sensitive geopolitical issues, via disciplinary proceedings where appropriate; and

  • be alert to signs of stress presented by employees linked to external geopolitical events and signpost them towards mental health resources.

Take action today—review your workplace policies and ensure your team is equipped to prevent and address ethnic abuse. Contact the Lawrence Stephens employment team.

Gregg Wallace sacked by BBC: Businesses must take a strong stance against workplace misconduct

Posted on: July 9th, 2025 by Natasha Cox

Following the news that presenter Gregg Wallace has been sacked by the BBC over an inquiry into alleged misconduct, Solicitor Becci Collins comments on the importance of businesses taking strong and immediate action against inappropriate behavior in the workplace.

Becci’s comments were published in Personnel Today, 9 July 2025, and can be found here.

Becci Collins, a solicitor in the employment team at Lawrence Stephens, said Wallace’s dismissal was “a stark reminder that inappropriate workplace behaviour will not be tolerated.

“However it is concerning that individuals have reported concerns about his behaviour for many years without action being taken.

“Employers must do better in complying with their obligations to employees, particularly in relation to their obligation to prevent sexual harassment in the workplace.

“The reputation and seniority of the individuals about whom complaints are made must have no bearing on how those complaints are investigated, what outcomes are reached or the punishments meted out to those who violate the law on harassment and discrimination.”

To find out more about employer obligations and how we can help, please click here

Ban on non-disclosure agreements: victory or vanity?

Posted on: July 9th, 2025 by Natasha Cox

The government’s press release of 8 July 2025[1] sets out its proposal to amend the Employment Rights Bill (‘ERB’) to introduce a statutory ban on employers using non-disclosure agreements (‘NDAs’) in cases where an employee alleges harassment, sexual harassment or discrimination.

While the ERB already contained a variation to the Employment Rights Act 1996 to extend the scope of whistleblowing legislation to include allegations of sexual harassment, this new amendment could completely rewrite the rules on how employers deal with claims of harassment and discrimination by employees. But is it really the glorious victory campaigners make it out to be?

What is an NDA?

In employment law, NDAs are most commonly used in the form of a confidentiality clause. They are found in a number of employment-related documents, including contracts of employment.

It has also been standard practice for some time that settlement agreements entered into between employers and employees (either on termination of the employee’s employment or as part of the settlement of an ongoing Employment Tribunal claim) include a confidentiality clause preventing the disclosure of the existence of the settlement agreement. Crucially, they also prevent the disclosure of the circumstances leading up to the settlement agreement. This has traditionally been one of the biggest benefits for employers, allowing them to minimise the risk of adverse PR arising from Employment Tribunal claims. So why would the government take that benefit away?

The government’s rationale

The current proposal is not to ban NDAs in their entirety. However, their use will be severely curtailed in that they will be barred in cases of discrimination and harassment. 

There are existing mechanisms in place that restrict the use of NDAs. For example, any attempt to prevent an employee from making a protected disclosure under whistleblowing legislation (for example reporting a criminal offence to the authorities) is unenforceable. There has also been non-statutory guidance published by the Equality and Human Rights Commission[1] in place since 2019 on the use of confidentiality agreements in discrimination, harassment and victimisation cases. However, these protections have been criticised as too weak and that is why the government has tabled this amendment to the ERB. Campaigners say that NDAs have been misused for too long, ‘silencing’ victims of discrimination and harassment by preventing them from speaking about their experiences in the workplace. High profile cases such as that of Zelda Perkins (an ex-assistant of Harvey Weinstein) who has fought the NDA she signed for the last eight years, highlight why campaigners felt this change was needed.  

Effect on settlement agreements

If passed, the ban will mean that any NDAs that seek to prevent an employee disclosing an allegation of harassment, sexual harassment or discrimination will be unenforceable.

While this change will affect the use of NDAs in any employment documentation, the change will be most keenly felt in relation to settlement agreements.

These agreements have an important place in settling employment disputes, providing certainty and closure for both employees and employers. There is a risk that the government’s proposal will place employees at a disadvantage because employers may be less inclined to enter into settlements when they no longer have the comfort that the circumstances complained of, and any settlement reached, will remain confidential. This may force employees to pursue their claim via the Employment Tribunal, a process which is expensive and arduous, particularly due to the extreme delays within the Tribunal service. For these reasons, the government is unlikely to achieve its aim of ensuring that employees are no longer forced to suffer in silence because instead they may be forced to either walk away with nothing, or simply ‘put up and shut up’.

That said, if the ban on NDAs does come into force, settlement agreements will remain an important mechanism for employers in dealing with employment disputes because:

  • With the current Tribunal backlog, the average time from issuing a claim to a final hearing is over a year (and more commonly, over 18 months in cases of discrimination). This means that seeing cases all the way through the Tribunal process will result in significant legal costs.
  • In addition, litigation is distracting and time consuming, sucking up resources that could be used elsewhere.
  • Key witnesses may have left the business prior to a final hearing, meaning the company won’t be best placed to defend itself.
  • The ERB is a significant overhaul of employment legislation and creates several ‘Day 1’ rights for employees, including protection against unfair dismissal, which will further increase the wait time for Employment Tribunal claims.
  • In matters not involving allegations of harassment, sexual harassment or discrimination, the ban has no effect.

When will this be implemented?

The government’s July 2025 roadmap for implementing the ERB[2] describes a phased approach to implementation. Some changes will take effect on the day the ERB is given Royal Assent, while others will take effect from April 2026 and October 2026. It is not yet known when this amendment, if passed, will take effect, but it would be no later than 2027.

Get in touch if you require further guidance on the use of NDAs or in relation to allegations of harassment, sexual harassment or discrimination.

[1] Government Press Release: Press release: Ban on controversial NDAs silencing abuse

[2] Implementing the Employment Rights Bill – Our roadmap for delivering change