Latest UK EmpLaw Newsletter

Employment Rights Bill enters the ‘ping pong’ phase

As we enter the winter months of 2025, many had anticipated that we would have a shiny new statute on the statute books: the Employment Rights Act 2025. This has not transpired, with certain key provisions remaining under debate after being rejected by the House of Lords following a debate on 28^th October 2025. The impacted provisions include:

• Day one unfair dismissal rights – the Lords are pushing for a six-month qualification period.
• Guaranteed hours – the Lords have requested a right for the employee to opt-out of continuous review of hours and periodic offers of guaranteed hours where they are content to continue on a zero hours basis.
• Seasonal workers – the Lords want assurance that, when passing regulations on guaranteed hours, special regard is had to the circumstances of seasonal workers.
• Trade union funds - the Lords feel that new trade union members should be given a choice as to whether to opt in to a union’s political fund.
• Ballots for industrial action - the Lords disagree with the Government’s proposal to remove the requirement that there must be a turnout of at least 50% of those eligible to vote in a ballot for industrial action.

The Bill has been sent back to the House of Commons for further consideration of these contentious points – all part of a parliamentary process known colloquially as ‘ping pong’. The Bill will ‘ping pong’ between the two Houses until such time as an agreed position is reached. The fact that the Bill’s most headline-grabbing provision: unfair dismissal as a day one right, is strongly opposed by the House of Lords, means that it may be several months yet before the Bill passes into law.

Employment Rights Bill: Government consults on family-friendly changes

The UK government has launched two consultations under the Employment Rights Bill, focusing on proposals to enhance family-friendly workplace rights. Both consultations run until 15th January 2026, with draft regulations and employer guidance to follow.

1. Strengthened protection from dismissal during pregnancy and maternity

The government proposes to prohibit dismissal of employees during pregnancy, maternity leave, and for a period after returning to work - except in specific circumstances.

Currently, legal protection is limited to a right of first refusal for suitable alternative roles during redundancy.

Key issues for consultation include:

• Valid dismissal grounds: Which existing dismissal grounds (such as conduct, capability, redundancy, statutory prohibition, or some other substantial reason) should continue to apply? And should a stricter test be introduced?
• Timing of protection: Should protection begin at pregnancy notification or earlier? Should it extend six months or longer (up to 18 months) after returning from leave?
• Wider coverage: Should the same protections apply to adoption leave and shared parental leave?
• Impact on employers: The consultation also explores unintended consequences - such as recruitment hesitancy - and how to support compliance.

2. New right to unpaid Bereavement Leave (including pregnancy loss)

A new statutory right to unpaid bereavement leave is proposed, available from day one of employment. The right would cover both the loss of a loved one and pregnancy loss before 24 weeks.

Key consultation points include:

• Eligibility: Which relationships should be covered? For pregnancy loss, should partners and intended parents be included?
• Types of pregnancy loss: Miscarriage, ectopic and molar pregnancies, medical terminations, and failed IVF are all in scope.
• Leave terms: The proposal is for a minimum of one week of unpaid leave within 56 days of the loss. Feedback is sought on duration, flexibility, and timing.
• Notice and evidence: The government acknowledges the sensitivity of pregnancy loss and questions whether any evidence should be required.

The government has invited input from employers, HR professionals, trade unions, and individuals. Early preparation and participation in the consultation process is recommended.

Employment Rights Bill: Government consults on trade union changes

The government has opened two public consultations under the Employment Rights Bill, aiming to expand and formalise trade union rights in the workplace. Both consultations will run until 18th December 2025.

1. New trade union access rights for workplaces

A major proposal would place a statutory duty on employers to allow trade union access to workplaces for specific purposes, such as informing workers about union membership or holding meetings.

Key issues under consultation:

• Union request process: What details unions must provide to request access and how requests should be submitted.
• Employer obligations: Timeframes for responding to requests and the circumstances in which access can be refused or negotiated.
• Dispute resolution: The Central Arbitration Committee (CAC) would act as the decision-maker in access disputes, including setting terms of access where needed.
• Access types: Could include both physical access to sites and digital access to workers, along with rights to share information and hold meetings during working hours.
• Enforcement: The government is seeking views on penalties and enforcement mechanisms for employers who fail to comply.

2. New duty to inform workers of their right to join a trade union

The second proposal would require all employers to inform workers of their legal right to join a trade union.

Consultation points include:

• What should be communicated: Information about the right to join, legal protections for union members, and where to find further details.
• How the information is shared: Whether it should be a standalone document or part of the contract/written particulars. Should it be delivered digitally, in paper format, or both?
• When to provide the statement: Options include at the start of employment, upon role changes, or at regular intervals.
• Reissue requirements: The consultation explores if a one-time notice is sufficient or if there should be annual or event-triggered updates.
• Implementation timeline: The government proposes an implementation date of October 2026, with particular attention to minimising burdens for small employers.

The proposals, if implemented, would introduce new legal duties affecting how organisations engage with unions and communicate workers' rights. Employers, HR professionals, and trade unions are encouraged to respond to both consultations to help shape the final legislation.

Accent discrimination at work: What the law does – and doesn’t – cover

Under the Equality Act 2010, UK workers are protected from discrimination at work if it relates to one of nine protected characteristics: age, sex, sexual orientation, gender reassignment, marital or civil partnership status, pregnancy and maternity, race, religion or belief, and disability. But what happens if someone is treated differently at work because of the way they speak – specifically, their accent?

The law doesn’t currently recognise accent as a standalone ground for discrimination. Unless a person’s accent is tied to race or ethnic origin, they’re unlikely to be protected under existing equality laws.

When accent discrimination is covered

Two recent cases show how accent discrimination can fall under the umbrella of race discrimination, where the accent is closely tied to ethnic origin.

In Carozzi v University of Hertfordshire, a Brazilian employee complained that remarks about her ‘strong Brazilian accent’ amounted to racial harassment. While the employment tribunal initially dismissed her claim, the Employment Appeal Tribunal disagreed. It found that the remarks could be harassment related to her ethnic origin, even if her colleagues weren’t consciously motivated by race.

This approach was echoed in Machado v Swansea Audio (t/a Coyote Ugly), where a Brazilian bartender was told she shouldn’t use the microphone because customers couldn’t understand her. The tribunal held that this was unlawful racial harassment, because the comment was clearly linked to her accent, which itself was linked to her national origin.

These cases make it clear that comments about an accent – even where they relate to communication concerns – can be risky territory. If the accent has a connection to race or nationality, that’s enough for a discrimination or harassment claim to arise.

When accent discrimination isn’t covered

The law becomes far more uncertain when it comes to regional accents. If someone is treated less favourably because they speak with a Scouse, Geordie, Mancunian, Brummie (or any other UK regional) accent, there is no current legal protection under the Equality Act.

In the Machado case, if the bartender’s accent had been Geordie rather than Brazilian, her case would likely have failed. That’s because regional or social origin is not a protected characteristic under current law.

This doesn’t mean employers should ignore the issue. Mockery, exclusion, or subtle bias based on regional accents can still create an unhealthy workplace culture – and may give rise to constructive dismissal claims if the employee resigns over it.

There have been calls to expand legal protections, including proposals to add social class or socioeconomic background as a protected characteristic – which could give future coverage to regional accent discrimination. For now, however, the legal gap remains.

Key Takeaways for HR

• Be proactive with communication issues
  Work with managers to identify and address any barriers to verbal communication. Where accents may be a factor, particularly those linked to ethnic or national origin, consider alternative communication strategies – for example, supplementing verbal communication with written materials.
• Handle concerns with care
  Where there are genuine communication issues, ensure they are raised sensitively and constructively. Comments about someone’s voice or speaking style can easily cross the line into harassment – even if unintended.
• Update anti-harassment training
  Ensure all staff, especially line managers, are trained to avoid language-based bias and to understand that accent can, in some cases, be legally protected.

Whistleblowing dismissal vs detriment: The limits of the Jhuti principle

The Employment Appeal Tribunal’s decision in Henderson v GCRM Ltd & others has clarified the limits of the Jhuti principle in whistleblowing cases - and where liability for dismissal or detriment can fall.

1. Automatic Unfair Dismissal (s.103A ERA 1996)

An employee is automatically unfairly dismissed if the principal reason for their dismissal is that they made a protected disclosure (i.e. they blew the whistle).

• These claims can only be brought against the employer, not individuals.
• The case of Jhuti v Royal Mail Group is authority for the fact that, where the decision-maker is not influenced by whistleblowing but is manipulated (by invention or concealment) into dismissing by someone who was motivated by whistleblowing, then the principal reason (for which the employer is liable) will be whistleblowing (the ‘Jhuti principle’).

2. Whistleblowing detriment (s.47B ERA 1996)

A separate right protects workers from being subjected to detriment (any disadvantage) because of whistleblowing.

• These claims can be brought against individuals - such as workers or agents - and the employer can be vicariously liable.
• However, the Jhuti principle does not apply here. The person who has allegedly committed an act of detriment cannot be imputed with the whistleblowing motivation of someone else. To do otherwise would risk unlimited personal liability (because detriment claims can be brought against individuals) for someone who was entirely innocent.

In Henderson itself, the Claimant was dismissed for misconduct. The decision-maker (R3) didn’t know she had made protected disclosures but relied on information from her line manager (R2), who did.

The EAT held:

• The claim of automatic unfair dismissal (under s.103A) could proceed against the employer if manipulation by R2 was proven.
• The tribunal should not have applied Jhuti to the detriment of dismissal claim against R3 (imputing R3’s innocent act of dismissal with the motivation of R2 who was influenced by whistleblowing). The EAT commented that, “a composite approach - combining the act of one individual with the motive of another - is unacceptable in principle” in detriment claims.
• Since R3 wasn’t liable for the detriment of dismissal, GCRM could not be liable either.

Key takeaways

• Jhuti applies only to dismissal claims (s.103A), not to detriment claims (s.47B).
• For detriment claims, liability depends solely on the individual’s own motive and conduct.

Holiday pay, normal pay and the treatment of tips

he Working Time Regulations 1998 make it clear that employees should receive holiday pay calculated on the basis of their ‘normal pay’ for at least four weeks of holiday in each holiday year. After years of case law exploring the subject of what is considered to be ‘normal pay’ (and should, therefore, be included in the calculation of holiday pay), the position is now fairly settled. It should include all elements of pay which are ‘intrinsically linked’ to work done under the contract of employment including (but not limited to):

• Bonuses
• Commission
• Compulsory and non-compulsory overtime
• Voluntary overtime which is a regular feature of working life
• Regular allowances

What about tips?

On the face of it, they would appear to fall within the remit of a payment which is ‘intrinsically linked’ to work done under the contract of employment. However, a recent employment tribunal case indicates that the position is rather more nuanced than that.

In Palanki v The Big Table Group, the employee worked in a Las Iguanas restaurant. Tips were collected as a service charge by the employer and shared between staff. They did not use a tronc. When the employee took holiday, his holiday pay did not include an average of the tips he had received in the preceding 52 weeks. This was not an insignificant amount as tips often represented up to 50% of his take-home pay. He claimed underpayment of holiday pay. The employment tribunal held that the tips were intrinsically linked to the performance of the employee’s job, and their value should have been included in the calculation of holiday pay. Interestingly, the finding may well have been different had the employer used a full and effective tronc system to process and administer tips, or if the employee had received the tips directly from customers rather than via the employer. Arguably, in both cases, they would not be sums ‘payable by the employer’, so wouldn’t have needed to be included.

This technical point is worth bearing in mind for employers operating in sectors where tipping occurs. Using a tronc system (if set up correctly) could result in savings for the employer on holiday pay payments.

‘Pulling the wool’: the perils of using substitution clauses which lack substance

Employment status is a tricky issue. Those who are genuinely self-employed have no entitlement to key employment protections such as holiday pay, statutory sick pay, national minimum wage and unfair dismissal. Employment status is a matter of fact – established by looking at a range of factors. You can state in an individual’s contract that they are intended to be self-employed, but this holds little weight: if the factors point to employee/worker status, then they will hold that status.

One of the hallmarks of employee/worker status is the requirement for personal service. If a person is required to perform their services personally, then they are much more likely to be found to be either workers or employees. For this reason, those who want an arrangement to be classified as self-employed will often include a substitution clause in their written agreement: allowing the individual to send someone else in their place to carry out their duties. However, as a recent case has shown, these clauses will only be a useful pointer towards self-employed status if they are genuine.

In BCA Logistics v Parker, over 400 drivers engaged by webuyanycar.com claimed workers’ rights (including national minimum wage and holiday pay). Their standard contract permitted them to send a substitute. Both the employment tribunal and, on appeal, the Employment Appeal Tribunal, found that the substitution clause was not genuine. The drivers were held to be workers. In coming to this conclusion, the EAT pointed to the following:

• There was no evidence that a substitute had been used in 25 years.
• The individuals were not given any practical guidance as to how the appointment of a substitute would work.
• There was no mechanism for making sure that any substitute would be covered by insurance.
• There was evidence that requests to use substitutes had previously been refused.
• It was unrealistic to think that the business would allow unaccountable and untrained substitutes to drive customer vehicles.

This case is yet another illustration that, when it comes to employment status, what actually happens on the ground is far more important than what is written in any contract. Businesses should audit any self-employed arrangements in place to make sure that they are not open to challenge in the same way as the business in this case. The importance of getting employment status right is only going to grow: the Employment Rights Bill proposes to give the Fair Work Agency (the employment law enforcement body which will be set up under the ERB) the right to impose a penalty of up to 200% of holiday pay sums owed in underpayment cases.

Employee who worked two jobs for the same employer was fairly dismissed from one of them

The rise of remote work post-COVID-19 is arguably the most radical shift in working patterns since the advent of email. Many employees now value flexibility as much as pay. But this flexibility comes with a trade-off - reduced visibility.

In the traditional office, presence could signal productivity (however imperfectly). Now, HR and managers are left wondering: how do you measure effort and output when no one can see it?

Cue a massive uptake in employer use of remote spyware – for employers to monitor employee productivity from afar. However, the recent employment tribunal case of Lanuszka v Accountancy MK Services illustrates the importance of questioning the data gathered by this spyware and adopting a reasonable approach to the time which employees spend browsing during the working day. In this case, the employer did not prohibit personal searches using company equipment during working time. Remote spyware installed on the employee’s PC showed she had spent around an hour and a half, over two days, on ‘personal matters’ including scrolling Amazon, Very and Rightmove. She was dismissed for misconduct. The employment tribunal found her dismissal to be unfair. In particular:

• The amount of time spent doom scrolling was not excessive – especially given personal use of the computer was not banned.
• The employer had not conducted a reasonable investigation – it had failed to look behind the data presented by the spyware package. In fact, the spyware had incorrectly categorised some work-related searches as personal use.

It is important that employers are able to monitor and assess employee productivity when they are engaged in remote working. Monitoring software is one way of doing this. However, this case illustrates that employers should not rely blindly on the data collected and should conduct their own ‘human’ analysis before taking action. Clear boundaries of acceptable personal use should also be communicated to avoid uncertainty and reduce the risk of any disciplinary action being challenged.

Staying in Lane: HR’s role in disciplinary decision-making

When employment tribunals assess claims of unfair dismissal, the primary focus is on the state of mind of the decision-maker at the time the dismissal was made. It’s therefore essential that employers can clearly identify who that decision-maker is, ensure they are properly equipped for the role, and allow them to reach their own conclusions independently.

Clarity from the outset

From the beginning of any disciplinary process, employers should confirm:

• Who the decision-maker is;
• What information they are relying on; and
• Whether any other individual is unduly influencing the process.

If a disciplinary outcome reflects input from multiple sources, those individuals may be treated as joint decision-makers. This opens the door to greater scrutiny of their individual motivations and conduct.

HR’s role: support, not control

HR professionals play a crucial role in disciplinary processes, but it's important that they stay in their lane. Their involvement should be advisory - focused on procedure, law, and consistency - not on determining culpability or sanction.

In Ramphal v Department for Transport, the Employment Appeal Tribunal found that HR had overstepped. Initially, the disciplinary officer had concluded that the employee’s conduct was not deliberate and did not warrant dismissal. After intervention from HR, the findings were changed, and the sanction upgraded to summary dismissal. The EAT found this inappropriate, stating:

• HR advice should be limited to law, procedure, and consistency - not culpability or sanction.
• An employee is entitled to assume the decision will be made by the appointed officer.
• If others unduly influence the outcome without the employee’s knowledge, the dismissal may be unfair.

Guidance – not interference

This doesn’t mean HR must sit silently on the sidelines. In the recent case of Alom v Financial Conduct Authority, the tribunal found no issue with HR providing a script to the disciplinary officer, even though it suggested what lines of enquiry to follow. The officer remained the final decision-maker, and the dismissal was upheld as fair. The case confirmed that scripts can be a helpful tool, provided they support structure and ensure procedural fairness, without dictating the outcome.

Practical tips for HR

To avoid the risk of being seen as a joint decision-maker:

• Clarify roles at the start of the process – in writing where possible.
• Advise on consistency, process and policy – not on what the outcome should be.
• Avoid drafting findings of culpability or sanction.
• Coach the decision-maker, but don’t direct them.

And finally ..

In a case of ‘you can’t blame a guy for trying’, in the recent case of Saul v Rashbrook, a solicitor put forward a rather far-fetched claim for unpaid commission. The whole concept of commission is rooted in the idea that a person receives a ‘cut’ of the value of sales that they have secured for the business. Mr Rashbrook’s contract said he would earn commission on work he carried out once he had billed more than three times his salary. He claimed that he had been underpaid commission as his employer had not taken account of the work that other people had done on his files, when working out if he had reached the three times annual salary threshold. The Employment Appeal Tribunal held:

• Contract clauses should be construed neutrally and given their natural and ordinary meaning.
• The clause clearly said commission was only due for “work carried out by the Employee” as a solicitor.
• This meant that only work done by Mr Rashbrook himself counted toward the commission threshold.
• Once the fees for work done by others were removed, he hadn’t met the required threshold of three times his salary.

Mr Rashbrook’s claim was, unsurprisingly, dismissed.