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Are You at Risk of an Unfair Dismissal Claim?

Posted on: June 25th, 2026 by Alanah Lenten

The Employment Rights Act 2025 (ERA 2025) reduces the qualifying period required for employees to bring an unfair dismissal claim against their employer from two years to just six months as of 1 January 2027.

What does this mean?

A ‘qualifying period’ refers to the minimum length of continuous employment before an employee gains the legal right to bring a claim for unfair dismissal if their employment is terminated by their employer.

The changes apply to existing employees and new joiners after 1 January 2027. In practice, anyone employed on or after the 1 July 2026 will have the requisite six months’ service to immediately benefit from the legislative change.

It is worth noting that the continuation of employment (and therefore length of service) does not break during particular periods of leave or between certain consecutive contracts.  

The changes to qualifying periods are significant. To fairly dismiss an employee, an employer needs to demonstrate a statutory fair reason and to have also acted fairly by following a fair procedure when applying that fair reason. Having just six months in order to protect themselves against a potential claim means an employer’s procedures need to be robust from the beginning and must be able to establish performance issues or identify conduct or behaviour issues immediately.

It is important to note that the ERA does not alter the existing position that employees benefit from day-one protections against discrimination and automatically unfair grounds for dismissal.

What can employers do?

  • Revisit probation periods: A traditional six-month probation period is likely to lose its practical value. Many employers may instead consider shorter periods (for example, three to four months), with scope to extend where appropriate.
  • Strengthen performance management early on: Regular review meetings during probation will become increasingly important. Any concerns around performance or conduct should be identified and addressed promptly, rather than deferred until the end of the probation period.
  • Document decisions carefully: Employers will need clear, contemporaneous records of feedback, reviews and any steps taken to address issues. Where employment is terminated after six months, there will be a need to evidence both a fair reason and a fair procedure.
  • Invest in line manager training: Managers will need to be confident handling probation reviews, performance issues and fair processes. Poor handling at this stage is likely to increase litigation risk.
  • Reviewing recruitment processes including methods of attracting the widest pool of applicants, shortlisting processes, and assessing suitability very early on. Coupled with effective and supportive supervision arrangements from day one.
  • Check fixed term contracts that are currently in place. This is a complicated area and in certain circumstances the non-renewal of a fixed term contract can be recognised as a dismissal with the same statutory rights therefore applying.

Effect on potential employment tribunal claims

With the time limit for bringing an unfair dismissal claim also extending from three months (currently) to six months (as of October 2026) there is little doubt that these changes will mean many more claims for unfair dismissal will be brought to the employment tribunal.

We are already seeing final hearings listed into 2029, and delays are likely to grow. This will affect how claims are managed, with employers likely to incur costs earlier in the process. For example, witness statements may need to be taken sooner to reduce the risk of memories fading or key witnesses leaving the organisation.

The strain on existing tribunal services should push parties to think more deeply about settling matters between themselves – either directly or through ACAS. Avoiding litigation can mean both time and cost savings (albeit there will still be some costs), and allow all parties to move on.

The ERA will also remove the statutory cap on the compensation award for ordinary unfair dismissal as of 1 January 2027. Currently, the statutory cap is the lower of one year’s pay or £123,785. Removing the cap could see much higher awards, particularly for high-earning employees. View our article on what founders should think about now, here. 

Get in touch if you require further guidance on mitigating against unfair dismissal claims or any of the changes in force or due to come into force by the ERA 2025.

The Employment Rights Act 2025: What It Means for Growing Businesses

Posted on: June 25th, 2026 by Alanah Lenten

The Employment Rights Act 2025 received Royal Assent in December 2025 and introduces wide-ranging changes to employment law, with many measures being phased in over the next two years. Founders and leadership teams will need to navigate an evolving landscape to stay compliant while continuing to scale. You can view the full timeline of changes here. Below, we’ve set out the key takeaways founders should be considering at each stage.

December 2025

Don’t react yet, get ready.
The law is in place, but most changes haven’t landed. Use this window to audit contracts, policies and HR processes so you are not caught on the back foot.

January 2026

Move from awareness to planning.
Consultations are underway and direction of travel is clear. Start mapping what will need to change across hiring, policies and people management.

February 2026

Expect a more union‑friendly environment.

  • Key industrial action and trade union reforms begin to take effect, with stronger protections for workers taking protected industrial action.

April 2026

Operational shift.
This is where employer obligations begin to increase:

  • Day-one rights widen for paternity leave and unpaid parental leave, with SSP payable from day one
  • Protective awards for failure to collectively consult during a redundancy are doubled
  • Increased record-keeping compliance – maintain auditable records proving compliance with statutory holiday and pay entitlements for six years
  • Harassment and whistleblowing protections expand

Founder takeaway: your processes need to be tighter from day one of employment. There is less room for informality. 

July 2026

Your new hires now carry future risk.

  • Anyone hired from this point may be among the first cohort to gain ordinary unfair dismissal protection after six months’ service from January 2027.

Founder takeaway: hiring decisions matter more than ever. There’s less margin for error.

August 2026

Workforce organisation gets easier (for employees).

  • Further trade union reforms are expected to make organising and balloting more accessible, with some existing thresholds remaining in place until at least August 2026.

Founder takeaway: employee voice and organisation will be more visible and faster-moving.

October 2026

Employer obligations step up significantly.

  • Employment tribunal limitation periods to increase from three months to six months
  • Employers must take “all reasonable steps” to prevent sexual harassment, including third-party harassment by clients or customers
  • New compliance requirements around unions, tips and workforce structures

Founder takeaway: risk exposure increases as does the need to take proactive steps, particularly if you rely on lean HR processes or client-facing teams.

January 2027

The big one, risk arrives earlier and costs more.

  • Ordinary unfair dismissal protection after six months’ service, rather than two years
  • The statutory cap on the compensatory award for unfair dismissal is removed, although awards will still be based on actual and projected loss
  • New restrictions on “fire and rehire” and “fire and replace” practices are expected

Founder takeaway:
You now have a very short window to assess and manage underperformance, and mistakes are significantly more expensive.

During 2027

Ongoing shift towards worker protection and predictability.

  • More rights for atypical workers (hours, shifts)
  • Stronger family and pregnancy protections
  • Further flexibility reforms
  • Continued strengthening of union rights

Founder takeaway: employment models that rely on flexibility, informality or ambiguity will be under pressure.

TBC

Further restrictions on confidentiality clauses expected.
Timing is unclear, but the direction of travel is towards tighter restrictions on provisions that prevent disclosures relating to harassment or discrimination.

Founder takeaway: assume less ability to rely on confidentiality provisions in sensitive employment situations going forward, particularly where harassment or discrimination issues arise.

Bottom line for founders:
This is not one change, but a steady tightening of employee protections. The biggest shift is timing: risk now arises much earlier in the employment lifecycle, so getting hiring, onboarding and early performance management right is critical. View our checklist on hiring employees here and the full timeline of what to expect from the ERA here.

 

What’s in a Name? And How to Protect Yours

Posted on: June 25th, 2026 by Alanah Lenten

For many founders, particularly in creative industries, there is no cleaner way to build a brand than to build it around yourself. Your name, your reputation, your story. The business grows because of who you are. But what happens when you sell that business — or leave it — and the name you built it on goes with it?

This is not a hypothetical question. It is one that has played out in some of the most striking commercial disputes of recent years, and it carries real lessons for any founder considering a sale, an employment arrangement or a partnership where your personal identity is part of the commercial offering.

When you sell the name, you sell more than a word

Jo Malone sold her fragrance business to The Estée Lauder Companies in 1999, transferring not just the brand but the contractual rights to her name in commercial contexts. She left in 2006, launched Jo Loves in 2011, and began a fragrance collaboration with Zara in 2019. In early 2026, Estée Lauder filed legal action against her for breach of contract, trademark infringement and passing off — a concept in English law referring to misleading consumers into believing goods or services are connected to another business — all centred on the words “in collaboration with perfume Ms Jo Malone CBE, founder of Jo Loves” appearing on Zara’s promotional material.

When the clock runs slowly

When Bobbi Brown sold her cosmetics brand to Estée Lauder in 1995, she signed a 25-year non-compete. She left the company in 2016, spent years waiting out the remainder of her restriction — reportedly wearing a charm necklace engraved with its expiration date — and launched Jones Road Beauty the day it expired in October 2020. The brand has since grown to approach a $1 billion valuation.

This was a US dispute, and a 25-year restriction would face serious challenge under English law. UK courts will not simply enforce whatever the parties agreed;

When your name is licensed, not sold

Bridal designer Hayley Paige signed an employment contract in 2011 that gave her employer, JLM Couture, the rights to her name and her designs. When she sought to renegotiate in 2019, she was sued for using her own name and lost the right to design wedding dresses under it during the litigation. In 2024, following a settlement, she paid $263,000 to reacquire her name, her intellectual property and her social media accounts. She released a comeback collection in 2025.

Again, a US case — but the underlying issue resonates in any jurisdiction: signing away your name rights early in your career, without fully understanding the long-term implications, can cost you far more than you bargained for.

What this means for UK founders

These cases share a common thread: founders who built businesses around their personal identity, and later found that identity contractually constrained in ways they had not anticipated. For UK founders — whether selling a business, entering an employment arrangement or taking on investment involving any assignment of IP or brand rights.

These are the questions worth asking before you sign:

What are you licensing or transferring?

Name rights, trademarks and goodwill can be transferred independently of the business itself. Be precise about what you are giving up and in which contexts.

What restrictions apply after exit?

Non-compete and non-solicitation clauses in UK sale agreements are enforceable where reasonable. Courts look at time, geography and the scope of restricted activities.

Does the restriction apply to you personally?

There is an important distinction between a company selling a brand and an individual agreeing to restrict their own future conduct. Both are possible in the same transaction — but they need to be understood separately.

What happens to your name in a commercial context post-completion?

If your name is being transferred or licensed as a trademark, understand precisely what you can and cannot do with it going forward — including on social media, in collaborations and in any new ventures.

Are there protections built in for you as an individual?

The right to use your own name for non-commercial purposes, to reference your professional history, or to be identified as a founder are all capable of being preserved — but only if negotiated and documented properly.

Founders who build businesses around who they are should take as much care over the legal architecture of their name as they do over the commercial architecture of the business itself. Once those rights are transferred, reclaiming them is rarely straightforward — and can, as these cases show, take years.

A note on jurisdiction: the Bobbi Brown and Hayley Paige cases arose under US law. The legal frameworks — particularly around non-compete enforceability — differ materially from the position in England and Wales. The commercial lessons, however, translate universally.

Hiring Your First Employee: What Founders Need to Get Right

Posted on: June 25th, 2026 by Alanah Lenten

Hiring your first employee is a milestone moment for any founder. It’s exciting, a little daunting, and often a signal that your business is moving from idea to operation.

But becoming an employer brings legal and practical responsibilities that many early-stage businesses underestimate. From HMRC registration to contracts, pensions, and workplace policies, there’s a lot to get right from day one.

That’s why we’ve created a practical checklist for hiring your first employee in the UK to help you navigate the process with clarity and confidence, and we answer some key questions below.

Download the checklist here

When do you need to register as an employer in the UK?

You must register as an employer with HMRC before your first payday if you plan to pay someone as an employee.

Once registered, you’ll receive a PAYE reference number, allowing you to run payroll, deduct tax and National Insurance, and report to HMRC.

What do you need to set up before hiring an employee?

Before recruiting, you need to put the right foundations in place:

  • Register with HMRC for PAYE and obtain your employer reference
  • Decide the role and employment terms, including:
    • Working hours (full-time, part-time or fixed-term)
    • Salary (ensuring compliance with National Minimum Wage requirements)
    • Job responsibilities
    • Holiday entitlement in line with Working Time Regulations
  • Ensure your workplace is safe and accessible, including for remote employees
  • Obtain Employers’ Liability Insurance, unless an exemption applies
  • Set up a workplace pension scheme if your employee qualifies for automatic enrolment

Putting these elements in place early will help ensure compliance and avoid delays once recruitment begins.

How do you recruit an employee in the UK?

Recruitment should be carried out carefully and in line with your legal obligations:

  • Advertise the role and run a fair recruitment process (complying with the Equality Act 2010)
  • Make a formal offer of employment (conditional or unconditional)
  • Check the individual’s right to work in the UK before they start
  • Carry out any pre-employment checks relevant to the role, such as:
    • References
    • DBS checks (if required)
    • Professional qualifications or licences

These checks are essential to ensure both compliance and suitability for the role.

What documents do you need when hiring an employee?

Employers must ensure proper documentation is in place:

  • A compliant employment contract or written statement of employment particulars covering the required statutory information
  • Staff handbook and key policies (where relevant)
  • Notification to HMRC about your new employee
  • The principal written statement of employment particulars (the contract) must be provided on or before the employee’s first day. The right also applies to workers.

What should you do before the employee’s first day?

There are several key steps to complete before employment begins:

  • Issue the employment contract
  • Obtain a P45 or complete a new starter checklist
  • Consider reasonable adjustments if the employee has a disability
  • Set up systems to manage the probation period
  • Provide a privacy notice explaining how employee personal data will be processed
  • Arrange IT access, equipment and email accounts

This stage is about making sure both legal requirements and practical onboarding are covered.

What needs to happen on day one of employment?

The first day sets the tone and ensures compliance:

  • Conduct a formal induction, including health and safety
  • Set out clear expectations for the role and performance
  • Begin onboarding and introduce key policies and processes

You should also plan regular check-ins aligned with the employee’s probation period.

What are your ongoing responsibilities as an employer?

Once the employee has started, your obligations continue:

  • Enrol eligible employees in a workplace pension scheme (within statutory deadlines)
  • Manage and monitor:
    • Annual leave
    • Sick leave
    • Family leave
  • Meet statutory payment obligations (e.g. sick pay, maternity and paternity pay)
  • Put in place processes for:
    • Performance management
    • Handling disciplinary issues
    • Ending employment, if necessary

Having clear procedures in place helps reduce risk and ensures consistency.

Why is it important to get the setup right from the start?

Becoming an employer is more than simply paying a salary. It involves a structured framework of payroll, pensions, insurance and legal documentation.

Getting the basics right early on helps you:

  • Avoid regulatory issues or penalties
  • Build a compliant and scalable business
  • Create a positive experience for your first hires

Hiring your first employee is an exciting step, but it comes with important responsibilities. Taking a proactive, structured approach ensures your business is set up to grow with confidence.

The Employment Rights Act Timeline

Posted on: June 22nd, 2026 by Alanah Lenten

The Employment Rights Act introduces significant changes to employment law. Employers and HR professionals will need to navigate a complex and evolving landscape over the next two years to ensure compliance. Below is a timeline outlining the key changes we know so far.

December 2025

  • The Employment Rights Bill receives Royal Assent, becoming the Employment Rights Act 2025 (“the ERA”).
  • Immediate effect:
    • Repeal of the Strikes (Minimum Service Levels) Act 2023.
  • No other wide-ranging employment rights take effect at this stage.
  • The period following Royal Assent is characterised as pre‑implementation, with employers expected to prepare rather than change operational practices immediately.

January 2026

  • Employers expected to transition from monitoring legislation to active planning for changes due from February and April 2026.
  • The government commenced a number of consultations which are expected to shape and underpin the new obligations created in the ERA.

February 2026

  • Trade union reforms take effect, including:
    • Repeal of most of the Trade Union Act 2016, simplifying industrial action and ballot notices.
    • Removal of the 12-week limit on protection from dismissal for taking industrial action.

April 2026

  • National Minimum Wage Increase comes into force.
  • Statutory Sick Pay (“SSP”):
    • Lower Earnings Limit and waiting period removed meaning SSP is payable from day-one of employment.
  • Day-one rights introduced:
    • Paternity leave.
    • Unpaid parental leave.
  • Collective redundancy:
    • Maximum protective award doubled from 90-180 days’ pay.
  • Whistleblowing protections extended to include disclosures relating to sexual harassment.
  • Bereaved Partners’ Paternity Leave:
    • Up to 52 weeks’ leave where the mother or primary adopter dies within the first year.
  • Voluntary gender equality and menopause action plans commence.
  • Holiday Pay & Leave Records:
    • Employers now have a legal duty to keep specific, adequate records evidencing compliance with holiday pay and annual leave entitlements, which must be retained for 6 years.
  • The Fair Work Agency is established, consolidating enforcement of several employment rights (with enforcement powers to expand following further commencement).

July 2026

  • Employees hired from late June 2026 onwards will fall within the cohort that gains unfair dismissal protection once the shortened qualifying period takes effect in January 2027.

August 2026:

  • Introduction of electronic and workplace balloting for statutory trade union ballots.

October 2026

  • Extension of Employment Tribunal limitation periods to six months.
  • Expanded duty on employers to take all reasonable preventative steps to protect employees from sexual harassment.
  • New employer responsibility to prevent harassment by third parties, such as clients or customers.
  • New requirement for employers to inform workers of their right to join a trade union.
  • Re‑introduction of procurement rules addressing two‑tier workforce arrangements.
  • Further tightening of the legal framework governing tips and service charges.
  • Strengthening of trade union access rights to workplaces.
  • Regulation aimed at addressing unfair practices in trade union recognition procedures.
  • Introduction of additional rights and safeguards for trade union representatives.
  • Extension of protection against detriment suffered as a result of participating in industrial action.

January 2027

  • Unfair dismissal reforms:
    • Reduction of the qualifying period for unfair dismissal claims to six months’ service.
    • Removal of the statutory cap on compensation for unfair dismissal.
  • Restrictions on dismissal and re‑engagement (“fire and rehire”), significantly limiting employers’ ability to impose contractual changes through dismissal.
  • These changes apply to dismissals occurring on or after 1 January 2027, with employees hired from mid‑2026 falling within scope once they reach six months’ service.

During 2027

  • Workforce terms and flexibility:
    • Guaranteed hours and enhanced shift notice rules for zero‑ and low‑hours workers.
    • New collective redundancy consultation threshold.
    • Further reforms to flexible working requests.
  • Equality, family rights and workplace protections:
    • Mandatory gender equality and menopause action plans.
    • Enhanced dismissal protection for pregnant employees and maternity returners.
    • Statutory bereavement leave, including following pregnancy loss.
    • Strengthened sexual harassment regime, including defined “reasonable steps” for prevention.
  • Trade unions and industrial relations:
    • Strengthened industrial relations framework, including extended blacklisting protections.
    • New rights and safeguards for trade union representatives.
    • Reforms to union recognition and consultation procedures.
    • Introduction of electronic and workplace balloting for recognition and derecognition.
  • Regulation:
    • Regulation of umbrella companies.
    • Tighter rules governing the allocation and treatment of tips.

TBC

  • The ERA also provides for additional restrictions on the use of non‑disclosure agreements (“NDAs”) in an employment context; however, these measures do not appear in the revised implementation timetable and the timing remains uncertain.

If you would like to discuss how the ERA will affect you and your business, please get in touch. 

Off-Duty, On Your Radar: Why Employee Misconduct Outside Work Still Matters

Posted on: November 20th, 2025 by Alanah Lenten

The Festival Fallout: What Happens When Staff Misbehave Off the Clock

As the year draws to a close and the festive celebrations kick in, your team might be swapping spreadsheets for champagne flutes at Christmas parties or ringing in the New Year at glamorous gatherings. For most, it’s all in good fun. For others, it can become a cocktail of excess: alcohol, late nights, and behaviour that’s anything but brand-safe.

And here’s the truth: what happens off-site doesn’t always stay off your radar. If misconduct is witnessed by clients, colleagues, or even caught on camera, it can quickly become your problem. This year, Glastonbury made headlines for all the wrong reasons, with antisemitic chanting aired by the BBC sparking public outrage and we all saw what happened on the Coldplay kiss cam when the CEO and Chief People Officer of the tech company Astronomer, were caught having an affair.

The reputational ripple effect was swift and severe.

When Private Behaviour Becomes a Public Problem

Not every out-of-hours misstep warrants disciplinary action. But if the behaviour is criminal, breaches your company policies, or risks reputational damage, you may need to act, and fast.

Here’s the usual playbook:

  • Investigate: Establish the facts and assess whether there’s a case to answer.
  • Hearings: If warranted, hold a disciplinary hearing and weigh up the evidence.
  • Decide: Take proportionate action based on the severity and impact.

But tread carefully. If there’s no clear link between the misconduct and the business, disciplinary action could backfire, think unfair dismissal claims or constructive dismissal risks.

Reputation Is Everything—But It’s Not Always Enough

Reputational damage is often cited as the reason for disciplinary action. But it’s a slippery concept. What counts as reputational harm? And how do you prove it?

Case law is full of surprises. Employees have been dismissed for behaviour most would consider outrageous, only for tribunals to rule the dismissal unfair. The key? Employers must genuinely believe the misconduct could harm the business and must assess the risk with care.

Drawing the Line: Policy, Culture, and Clarity

Entrepreneurs and owner-managed businesses often operate in close-knit teams where culture is king. That’s why clarity matters. Your people need to know what’s expected of them , on and off the clock.

Here’s what you can do:

  • Create conduct policies: Spell out what’s acceptable outside work.
  • Update your social media policy: Online behaviour is public behaviour.
  • Train your team: Regular sessions on professionalism and reputational risk.
  • Act consistently: Fair and prompt responses build trust and protect your brand.

Final Thought: Prevention Beats Cure

Managing off-duty misconduct isn’t just about damage control, it’s about setting standards that reflect your company’s values. In a world where personal and professional lives blur, your reputation is only as strong as your team’s behaviour, on and off the job.

Need help navigating this terrain? Contact Emma Cocker to see how we can support you. 

Read the rest of The Fineprint edition 2 here. 

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

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

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