Winter Employment Law Update

Welcome to the Winter Employment Law update. In our employment and HR updates, Tom Evans outlines recent cases, updates to the law and other Employment and HR news. If you want to ensure you don’t miss the latest in Employment and HR, you can subscribe to our Employment Law Update Newsletter.

Employment Rights Act

The Employment Rights Act 2025 became law in December 2025 and will introduce the biggest changes to workers rights in a generation. The Act introduces 28 reforms that will reshape employment through a major overhaul of workers’ rights which will be implemented on a phased basis. Several of its reforms will come into force this year and the expected timeline is as follows:

FEBRUARY 2026

Industrial action:

• Relevant parts of the Trade Union Act 2016 which imposed limitations on strike action such as longer notice periods, restrictions on picketing and expiry of industrial action mandates after six months will be repealed automatically without further consultation.
• Enhanced protections against dismissal for employees taking industrial action. Including protection to be provided against dismissal for the full duration of protected industrial action and after it has concluded (i.e. removal of the current protected period of 12 weeks).
• Simplifying industrial action notices and industrial action ballot notices:
  • Reducing the notice periods for industrial action from 14 to 10 days.
  • Validity of strike ballots extended from 6 to 12 months.
• Removal of the 10-year ballot requirement for trade union political funds.

APRIL 2026

Family rights:

• Statutory Sick Pay – The 3-day waiting period and lower earnings limit will be removed. SSP will be payable from day one.
• Restriction on taking paternity leave after shared parental leave is removed.

Sickness

• ‘Day 1’ right to Paternity Leave and Unpaid Parental Leave.

Whistleblowing:

• A report that sexual harassment has occurred, is occurring or is likely to occur will be a type of “protected disclosure” for whistleblowing purposes.

Redundancy:

• Collective redundancy protective award will be doubled from 90 days’ pay to 180 days’ pay.

Trade Unions:

• Simplifying trade union recognition process and enabling electronic voting.

Fair work agency:

• Establishment of the Fair Work Agency – bringing together existing enforcement bodies and taking on enforcement duties of other employment rights, including holiday pay and statutory sick pay.

OCTOBER 2026

• Fire and rehire measures:
  • It will be automatically unfair to dismiss an employee for refusing to agree to a restricted variation to their contract of employment except where the employer can satisfy a “financial difficulties” exception

• Harassment:
  • Employers will be liable for third party harassment (covering all types of harassment not just sexual harassment) unless they took all reasonable steps to prevent it.
  • Employers will be under a duty to take “all reasonable steps” to prevent sexual harassment of their employees during the course of their employment. This is wider than the current duty to take “reasonable steps”.

• Tips & gratuities:
  • Tightening rules around tipping – employers must consult before creating a tipping policy and policies must be reviewed every three years.

• Union Rights:

• • New duty on employers to inform workers of their right to join a trade union.
  • Strengthening trade unions’ right of access in the workplace. Qualifying trade union officials have the right to request access to workplaces (whether that be in person or via digital communication) to meet, support, represent, recruit or organise workers (regardless of whether they are members of a trade union) and/or to facilitate collective bargaining – but not to organise industrial action.
  • New rights and protections for trade union representatives.

• Tribunal time limits:
  • Employment tribunal time limits to increase from 3 to 6 months (except claims for breach of contract arising or outstanding on termination of employment).

Employers are advised to review policies and keep thorough records to prepare for the evolving legal landscape.

Case law update

Wainwright v Cennox PLC

Facts:

• The Claimant had worked for the Respondent since 2002.
• In 2018 she was diagnosed with breast cancer and went on sick leave whilst undergoing treatment. Whilst she was on sick leave, a colleague temporarily stepped in to her role as Head of Installation to ensure business continuity.
• During her absence, the colleague resigned but was persuaded to stay after being offered a permanent Head of Installation role. The Claimant only became aware of this whilst on sick leave after reading a post on Linkedin.
• The Claimant contacted the Respondent who misled her in confirming that her role would be unaffected and assured her that the colleague’s appointment was temporary.
• In 2019, the company created a new job description and organisational chart for her role and the Claimant felt she had been demoted and raised a grievance.
• There were delays processing the grievance and during that time the Claimant resigned.
• The Claimant then brought a series of claims in the Employment Tribunal including constructive dismissal and direct discrimination for the unfair treatment she received following her cancer diagnosis.

Outcome:

• The Employment Tribunal upheld part of her discrimination claims but dismissed her claims in relation to the dismissal (including that her dismissal was discriminatory).
• The Claimant appealed to the Employment Appeal Tribunal.
• The EAT held that the Tribunal had gone wrong in both its analysis and its reasoning in determining the constructive unfair dismissal and discriminatory dismissal claims and remitted it to a differently constituted Tribunal to be reconsidered.
• The Tribunal found that the Claimant had been constructively unfairly dismissed, and that the dismissal was also discriminatory.
• The Claimant was awarded a total of £1,224,861.94 including an injury to feelings award of £40,000.

Key Takeaways:

• An absent employee should be made aware of workplace changes and should certainly not be actively misled. Even where an employer is trying to soften the blow, providing inaccurate or misleading information to an employee may amount to a repudiatory breach of contract allowing employees to treat themselves as constructively dismissed. Employers do not need to act with malicious intent for a breach to occur.
• Honest, clear communication is vital and is even more important when an employee is absent for any reason.
• The “last straw” leading to the employee’s termination of employment does not need to be a serious breach by itself, a less serious incident can cumulatively amount to a repudiatory breach if it is serious enough when combined with prior employer conduct.

New statutory rates

The Government has set out its proposed new statutory rates for statutory sick pay and family leave pay to apply from 6th April 2026:

The National Minimum Wage (NMW) & National Living Wage (NLW) will also increase from 1 April 2026 as follows:

• Aged 21 and over (NLW): £12.71 per hour (up from £12.21)
• Aged 18-20: £10.85 per hour (up from £10.00)
• Aged 16-17: £8.00 per hour (up from £7.55)
• Apprentices (under 19 or in first year): £8.00 per hour (up from £7.55)
• Accommodation Offset: £11.10 per day (up from £10.66)

For further advice on recent Employment Law Changes please contact the employment team at employment@dtmlegal.com or call 01244 354 800 / 0151 321 0000

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