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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.

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

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

FCA Widens Scope of Non-Financial Misconduct Rules

Posted on: July 3rd, 2025 by Natasha Cox

Senior Associate Emma Cocker comments on the FCA’s announcement that it will treat bullying and harassment as serious ‘non-financial misconduct’ across all regulated firms – not just banks.

Emma’s comments were published in Personnel Today, 2 July 2025, and can be found here.

“For too long there has been a mismatch between what the FCA’s rules say about non-financial misconduct and what has actually been said and done about such behaviour.

“Under these new guidelines, poor personal behaviour will be treated in the same way as financial misconduct, meaning it will need to be shared in regulatory references to the FCA. As such, it will be much harder for individuals to move from firm to firm to escape their disrepute.

“In addition to the implications on individuals, the new rules will help the regulator to spot cultural failings in firms, which in turn helps to identify instances of poor decision making and risk management, both of which are vitally important qualities in this industry.”

For more information on our employment services, please click here

How toxic masculinity can be harmful for businesses

Posted on: June 11th, 2025 by Natasha Cox

Senior Associate Emma Cocker discusses how toxic masculinity is increasingly infiltrating the workplace, with legal and cultural consequences for both employees and employers, in People Management. 

Emma’s article was published in People Management, 10 June 2025.

Toxic masculinity: a hidden cost to employers?

Following the huge success of recent Netflix drama Adolescence, the issue of toxic masculinity has been the subject of much debate. The prime minister has admitted to being worried about toxic behaviour on social media influencing young men, telling the BBC that the UK “may have a problem with boys and young men that we need to address”. Former England football manager Sir Gareth Southgate also recently aired his thoughts in a BBC lecture in which he said “toxic influencers… tricky young men”.

While discussions on this topic have so far focused on the impact of toxic masculinity generally, it is important to recognise the specific workplace challenges that are becoming more prevalent as a result of the corrosive impact of social media and misogynist influencers such as Andrew Tate.

Workplaces are increasingly reporting a subculture of negative behaviours rooted in out-of-date, and often harmful, masculine values. An overabundance of these traditional masculine norms can lead to behaviours including excessive aggression, emotional repression and a constant need to prove dominance. These behaviours can manifest in negative workplace practices; for example, a long-hours, ‘work first’ culture that prioritises work over personal or family life and individual wellbeing. Equally, overly competitive behaviour – such as a focus on winning at all costs, often at the expense of others – can have a negative impact on teamwork, collaboration and innovation. Diversity, inclusion, a healthy work-life balance and employee wellbeing also invariably tend to suffer. Instances of bullying may also increase in workplaces particularly prone to toxic masculinity.

These negative effects are being fuelled by the mandated scrapping of EDI programmes through a series of executive orders issued by President Trump. Across corporate America, EDI is now in sharp retreat with companies as diverse as IBM, Warner Bros, Coca-Cola, Goldman Sachs, McDonald’s and Amazon having scrapped, scaled back or renamed their EDI programmes.

Given that these are large, multinational companies, and many others like them have taken similar steps, the threat to EDI programmes in the UK is significant. While according to a recent survey by the Institute of Directors, 71 per cent of business leaders have no plans to alter their organisation’s approach to EDI following the scaling back of programmes in the US, that still leaves 29 per cent that might.

There are clearly other factors beyond Trump’s anti-EDI agenda affecting the UK’s position, not least the gender pay gap, which has remained stubbornly high. However, the negative effects of toxic masculinity on workplace culture should not be underestimated. As a consequence of the growth of toxic masculinity, businesses face increasing levels of risk, including the risk of legal claims by employees who have been subject to discrimination or harassment because of their sex. Fostering, or even just tolerating, a work environment that is hostile to women can violate employment law. Where successful, legal action against employers can result in costly settlements or awards of damages, as well as reputational damage to the organisation and a knock-on effect on employee morale.

Sensible organisations will heed warnings about toxic masculinity and take steps to mitigate these risks. These steps mostly come down to common sense and include having robust EDI policies, comprehensive training on appropriate workplace behaviours and a resolute commitment to challenging harmful workplace behaviours whenever they appear. However, where a workplace is already seeing significant negative consequences of allowing a toxic culture to persist, more drastic actions, such as disciplinary investigations, may be necessary. 

For further information on our employment services, please click here.

The legal definition of ‘sex’ and its impact on employer obligations and employee benefits

Posted on: May 29th, 2025 by Natasha Cox

Senior Associate Emma Cocker explores the recent Supreme Court ruling on the definition of ‘sex’, and discusses how this ruling will impact employers’ obligations under the Equality Act 2010, in REBA.

Emma’s article was published in Reward and Employee Benefits Association (REBA), 29 May 2025.

In April, the landmark Supreme Court case of For Women Scotland v The Scottish Ministers held that ‘sex’ within the Equality Act 2010 refers exclusively to biological sex. Though this judgment did not create new law, it has fiercely reignited tensions regarding the interplay between the rights of trans people and those of biological men and women. In particular, the divide between supporters of trans rights who believe a person’s sex can be changed, and those with ‘gender critical’ beliefs who believe that sex is biological and immutable.

There has been a significant amount of online misinformation about the implications of the judgment, particularly with regards to the workplace. However, the law today is the same as it was before the clarificatory judgment, with discrimination against trans people for reasons relating to gender reassignment and discrimination against those holding ‘gender critical’ beliefs being unlawful. Yet, because of the misrepresentation of the law on this highly emotive topic, many organisations are confused and fearful of falling foul of their employment law obligations.

So, what should employers be doing in light of the judgment?

Firstly, inclusion is for everyone and there is nothing discriminatory in recognising that the protected characteristics of sex and gender reassignment relate to groups that have different needs and vulnerabilities. Making toilets and changing rooms ‘gender neutral’ with no single sex provision will breach workplace health and safety legislation, as recognised by the Equality and Human Rights Commission’s interim guidance[1]. It may be tempting to take situations on a case-by-case basis, but this could lead to employment tribunal claims by workers who expect to be able to access single sex spaces for reasons of privacy and dignity.

It is also recommended that employers review their policies and training to assess and act on the risk that what they currently have is unlawful. Policies and training not based on the Equality Act 2010’s definition of sex are likely to result in unlawful conduct for which employers may be sued in the employment tribunal.

In relation to employee benefits, it is normally prudent for employers to ensure equal access for all, however this general rule should be qualified by the intended purpose of the benefit. For example, it would be difficult for employers to justify providing death in service benefits at unequal levels between trans and non-trans people. It would not normally be advisable to provide benefits exclusively for trans workers, though support geared towards those with gender dysphoria or transitioning individuals need not be excluded.

However, there will be situations in which benefits ought not to be offered equally. Providing group-based menopause support to a cohort including transwomen could, for instance, lead to claims of sex-based discrimination or harassment and would offer little benefit to transwomen who will not experience menopause.

If there is any difference in the benefits provided to men and women, they should be provided to employees based on their biological sex. For example, if an employer chooses to offer IVF or other ‘family building’ support, it should be made available to all staff. However, it would not be discriminatory to provide women with more paid leave than transwomen, in recognition of the physical impact of fertility treatments on women.

While some will say this is ‘new’ or ‘developing’ law, that is not the case. In order to remain compliant with the Equality Act 2010 and avoid claims of harassment and discrimination, employers must apply commonsense when considering the purpose for which employee benefits are provided, and the impact of blindly applying a blanket ‘equality rule’.

For more information on our employment services, please go here

[1] An interim update on the practical implications of the UK Supreme Court judgment | EHRC

AI in Law: Emma Cocker Shares Expert Insights in City AM Feature

Posted on: May 15th, 2025 by Natasha Cox

Senior Associate Emma Cocker comments in City AM on the future of AI within law firms, arguing that it can be a useful tool, however lawyers and employers must act cautiously as improper use can have serious legal implications. 

Emma’s comments were published in City AM, 15 May 2025, and can be found here.

“AI undoubtedly plays a huge role in the future of legal services. It will make them more accessible and affordable, which is a huge benefit, given that so many people and small businesses struggle to access legal services. It can also speed up output, with the automation of repetitive and time-consuming tasks helping lawyers to work more efficiently, which also translates to costs savings for clients.

“However AI must be used with caution. Remember that it should be used as a starting point and that the output is only ever as good as the input, which may be vulnerable to online misinformation. As such, AI content must always be reviewed for accuracy and subject to ultimate approval by a human being. We know that AI ‘hallucinates’ and we have already seen lawyers over relying on AI coming unstuck. As well as the professional embarrassment factor, AI could deskill junior lawyers who may not be practicing legal researching and drafting to the same degree as previous generations of lawyers. It may also contribute to a decline in the development of other key skills, such as critical and independent thinking.

“In authorising the first AI-driven law firm, the Solicitors Regulation Authority made it clear that lawyers relying on AI output will be ultimately responsible for the consequences and that professional standards must always be maintained to ensure public trust and confidence in the sector. Those who do use AI improperly may find themselves facing disciplinary proceedings by their employer and the regulator and in cases of ‘AI gone wrong’ there is scope for negligence claims by clients, as well as costs applications by opponents.”

For more information on our Employment services, please click here.

Employment law insight: what were the BBC’s obligations during the Huw Edwards scandal?

Posted on: March 7th, 2025 by Natasha Cox

The BBC have come under questioning regarding its handling of the Huw Edwards case in the wake of him pleading guilty to child sex offences on 31 July 2024. There is a particular focus on the period of Edwards’ suspension from July 2023, when he continued to receive his full pay of £475,000 per annum, and also received a pay rise of £40,000 during this time. We now know that the BBC were made aware of his arrest during November 2023. The underlying question here is whether his employer should have dismissed him at this point.

Putting aside the awful nature of his crimes, there is no getting away from the fact that, from an employment law perspective, the BBC had obligations towards Edwards until his resignation in April 2024.

Obligations during suspension

Once an employer is made aware of allegations of criminal activity and criminal charges relating to its employee, they are obligated to investigate to try and obtain as much information as possible.

Right to suspend

In most cases of gross misconduct (and more serious cases of simple misconduct), employers should consider suspending an employee pending the results of their investigation. Whilst suspension is by no means the default position, the ACAS code of Practice suggests suspension is acceptable if the employer reasonably believes it would be protecting any of the following:

  • the investigation: for example, if you’re concerned about someone damaging evidence or influencing witnesses;
  • the business: for example if there’s a genuine risk to your customers, property or business interests;
  • other staff; or
  • the person under investigation.

During the suspension, the employer will need to carefully consider decisions surrounding pay. Unless there is a clear contractual right to do so, the employer is not entitled to suspend a salaried employee without pay or contractual benefits.

In this case, if the BBC withheld or reduced Edward’s pay during his suspension, there would have been a risk of legal action by Edwards, although it is questionable whether Edwards would have wished to attract further media attention by instigating legal proceedings. In fact, there would still have been a risk of legal action, such as a claim of constructive unfair dismissal even if the contract allowed reduced or no pay during suspension.  

Would it have been fair to dismiss Edwards from November 2023, had he not resigned in April 2024?

Following the allegations, careful consideration ought to have been given to the pending disciplinary process and what action to take.

Prior to any dismissal, employers should consider the following:  

  • nature of the conduct: in cases of misconduct, consider whether actions or allegations relating to actions outside of work are sufficiently serious to warrant disciplinary action at work. Sometimes even cases that appear to be obvious misconduct affecting employment can lead to successful claims of unfair dismissal, such as in Walters v Asda Stores.
  • the evidence: when considering dismissal, the employer should endeavour to have as much information as possible prior to making any decision.
  • employee’s health: prior to any dismissal, the employer ought to consider whether there are any allegations or information to suggest ill-health on the part of the employee. If so, the employer ought to investigate the employee’s health. If the employee refuses to co-operate, it may be fair for the employer to dismiss.
  • the procedure: an employer must still follow a fair and reasonable procedure if an employee is accused of misconduct, including gross misconduct. What is fair and reasonable will vary from case to case, but there are certain minimum requirements, which ought to be followed in all cases. For example, employees have the right to be accompanied by a colleague or Trade Union representative at a disciplinary hearing.

In the case of Edwards, the complexity arises from the fact his criminal activity and convictions were unrelated to his work. Further, at the time of his arrest, the BBC claimed it did not have all the details surrounding the offences. It was also known that Edwards was hospitalized due to experiencing severe mental health issues which had worsened since the allegations were made. 

While criminal allegations or convictions alone may not justify disciplinary action or dismissal, there may still be grounds to dismiss. An employer may be able to establish a potentially fair reason for dismissal, if they can show there is misconduct sufficiently serious to justify dismissal for some other substantial reason. 

Employers may consider that an employee’s conduct (in this case criminal conduct outside of the workplace) is sufficiently serious to justify a dismissal on the basis that continuing to employ them would have a reputational impact. They would have to consider the nature of the offence and whether this will attract negative publicity. If so, they would need to consider reputational risk, as well as their health and safety obligations towards other staff, or service users. 

In the case of Edwards, given the nature of his offending, the reputational damage would have had a huge negative effect on the reputation of the BBC – a body that must be seen to uphold the highest standards. Had Edwards not resigned and the BBC continued to employ him, this would have exposed the BBC to disrepute, scandal and contempt. Edward’s link to the BBC could have caused sufficient damage to its reputation to affect the amount of licence revenue the BBC could generate for years to come.   

The BBC probably had all these considerations in mind when it decided not to dismiss Edwards. Edwards had not been found, or pled, guilty and the complex investigation was still ongoing. He was also hospitalised due to a mental health crisis. Failing to follow a fair and reasonable procedure, and disregarding his ill-health, could have exposed the BBC to liability for a claim of unfair dismissal. However, had Edwards not resigned in April 2024, the BBC would have had fair reason to dismiss him following his guilty plea.

When should an employer take action against the employee?

There are no hard and fast rules to apply when determining whether to go ahead with disciplinary proceedings when there is a criminal trial pending. The most important thing is for the employer to conduct its own investigations into the issues and to properly consider the options available in line with their requirements in the Employment Rights Act 1996. Employers have discretion whether to postpone disciplinary action where the employee’s misconduct is also the subject of a criminal investigation and prosecution. Even in emotive cases such as this, an employer ought to be careful not to act precipitously. 

BBC’s obligations to other staff

Whistleblowers who gave evidence to the BBC internal inquiry into Huw Edwards have criticised the way it was handled. One staff member says they were sent flirtatious private messages by the presenter in 2023. They complained that they had not been kept informed about the progress of the inquiry. Another staff member claimed that Edwards sent suggestive messages alongside a picture of his hotel suite.

Such allegations may constitute whistleblowing, which affords the employee various protections from dismissal and detriment, on the ground that they have made a protected disclosure. Providing effective protection for whistleblowers is important for several reasons, including:

  • encouraging a speak-up culture;
  • internal risk control;
  • limiting reputational damage;
  • protecting staff morale; and
  • avoiding unnecessary litigation.

If an employee is dismissed or is subjected to detriment on the ground that they have made a protected disclosure, this can expose the employer to potential tribunal claims for automatically unfair dismissal or whistleblowing detriment. Importantly, financial compensation in respect of these claims is uncapped, so employer liability can be significant.

When someone blows the whistle, the employer should explain its procedures for making a disclosure and whether the whistleblower can expect to receive any feedback. Often a whistleblower expects to influence the action the employer might take, or expects to make a judgement on whether an issue has been resolved, but this will rarely be appropriate.  

It is in the employer’s best interests to deal with a whistleblowing disclosure promptly. This allows the employer to fully investigate, make any further necessary enquiries and determine any appropriate action.  

There are several things an employer should do when a whistleblowing disclosure is made. It is important to make sure that as an employer, you:

  • handle any whistleblowing complaint fairly and consistently;
  • follow any process your organisation has for whistleblowing; and
  • keep the identity of the whistleblower confidential. 

The Government’s Whistleblowing Code of Practice encourages clear and prompt communications between the whistleblower and the employer. They should provide feedback to whistleblowers, within the confines of their internal policies and procedures. This is vital so that whistleblowers understand how their disclosure has been handled and dealt with. Failing to do so may result in the whistleblower approaching other individuals or organisations to blow the whistle externally. Therefore, it is strongly advisable for an employer to have a policy which explains the benefits of making a disclosure, the process and how the disclosure will be dealt with.

Takeaways from this case

It is reasonable to say that this case is far more complex than it may have initially appeared. If you need further guidance in relation to employee misconduct, suspension or dismissal, or you need a whistleblowing or disciplinary policy, please speak to our specialist employment team.

 

Emma Cocker comments on managing discrimination and harassment in the workplace

Posted on: January 9th, 2025 by Natasha Cox

Senior Associate Emma Cocker comments on the legal action facing McDonald’s over allegations of widespread harassment and discrimination, and discusses employers’ obligations to protect their staff and workplace.

Emma’s comments were published in Business Matters Magazine, 7 January 2025, and can be found here.

“All employers have duties to protect their staff against discrimination and harassment in the workplace – obligations which apply regardless of whether people are engaged on a full-time, part-time or zero hours basis.

“However, with most McDonald’s workers being engaged on a zero hours basis, individuals will be acutely aware of their employment insecurity. They are also likely fearful of being subjected to detrimental treatment for raising complaints. The abuse which arises from the imbalance of power inherent in these types of workplace relationships can lead to significant liability for businesses, of which employers must be conscious.

“It would appear that McDonald’s still has a long way to go in providing a safe working environment free from discrimination and harassment. How they handle these claims will likely be carefully scrutinised. The longer businesses allow this kind of behaviour to persist, the longer the list of grievances and legal claims they will face.”

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Emma Cocker comments on Employment Tribunals and the Employment Bill in City A.M.

Posted on: August 29th, 2024 by Hugh Dineen-Lees

With the upcoming Employment Bill on the horizon, Senior Associate in the Employment team Emma Cocker comments on whether current Employment Tribunals will be fit for purpose, in City A.M.

Emma’s comments were published in City A.M., 28 August 2024, and can be found here.

“The government’s intention to significantly expand employment rights will have a monumental effect on employment tribunals. We already know that tribunal claims are up by around 7% compared with 2022/23 with over 650,000 open cases. Giving employees protection against unfair dismissal from day one of their employment along with the extension of time limits for bringing claims from three to six months is likely to significantly effect the Tribunal’s ability to deal with cases in a timely manner. 

“Worryingly, parties are already experiencing significant delays, with some cases taking over 18 months to reach a final hearing. Complex discrimination claims face the longest waits, with Tribunals struggling to find capacity for hearings that are often listed for a minimum of seven days.  

“The former Conservative government had consulted on the reintroduction of Tribunal fees; however these were nominal and would be unlikely to make any difference in combating delays. The current government’s main solution appears to be the digitisation of claims, but it is unclear what further improvements are proposed beyond the existing online platform for submitting claims and liaising with the Tribunal. 

“Employment Tribunals could become overwhelmed with increased claims on top of already long delays, meaning both employers and employees may face longer waits to resolve workplace disputes.”

If you would like any advice on the upcoming Employment Bill or Employment Tribunals, please contact a member of our employment team.

Joanne Leach comments on the ‘right to disconnect’ in City A.M.

Posted on: August 21st, 2024 by Hugh Dineen-Lees

Joanne Leach, Senior Associate in the Employment team, comments on the government’s plan to give workers the ‘right to disconnect’ outside of their work day, in City A.M.

Joanne’s comments were published in City A.M., 21 August 2024, and can be found here.

“The implementation of the “right to disconnect” will require employers to carefully weigh up the competing interests of various employees. One individual’s “right to switch off” might curtail the right of another to work flexibly. This would impact others who require flexibility.

“To manage this risk, employers should suggest practical measures such as requiring any staff working outside core office hours to delay the sending of internal emails until the next working day. This is likely to be more effective in managing any conflicts as opposed to mandating all employees to switch off when it does not suit them.

“It remains to be seen whether employers can implement such practices and benefit from the increased productivity that the policy aims to deliver without opening themselves up to the chance of claims brought by staff who feel that their right to work flexibly has been curtailed by a government order to disconnect.”

If you would like some advice on how to support your staff in relation to flexible working and wellbeing, please contact a member of our Employment team.

Joanne Leach comments on anti-bullying policies in People Management

Posted on: August 6th, 2024 by Natasha Cox

Joanne Leach, Senior Associate in the Employment team, comments on a recent study which found that more than half of UK employees do not think that shouting at work counts as bullying and discusses how employers can address workplace bullying.

Joanne’s comments were published in People Management, 5 August 2024, and can be found here.

“Adopting an anti-bullying and anti-harassment policy is merely the first step an employer must take towards addressing workplace bullying. To ensure it is effective, employers must also train the whole workforce on what is required of them regarding their interaction with colleagues.

“What constitutes ‘acceptable conduct’ has shifted significantly in recent years, and behaviour that used to be tolerated can now lead to significant liabilities for an individual and their employer.

“When an incident of bullying occurs, employers are more likely to minimise liability with clear grievance and whistleblowing policies in place which employees can access and managers can understand.

“Policies that address workplace culture, such as a clear diversity, equity and inclusion policy and training on unconscious bias and allyship, also empower employees to support their colleagues and call out wrongdoing if they witness unacceptable conduct.”

If you would like any assistance in developing whistleblowing, workplace culture or diversity, equality and inclusion policies, please contact a member of our Employment team.