Get in touch 0117 325 0526
Get in touch 0117 325 0526
Summer is well and truly here, and somehow the year is flying by! It feels like only yesterday we were looking ahead to the employment law changes expected in 2026 and there has certainly been no shortage of updates since the Government revised its implementation timetable.
With the UK Government continuing to progress its employment law reforms, employers have plenty to keep on top of. From changes to employment rights and upcoming implementation dates, to the practical impact these reforms will have on businesses and their people, the landscape continues to move quickly.
So, now we are firmly in the second half of the year, we thought it would be useful to bring together some of the key employment law developments you need to know about and more importantly, what they could mean for your organisation!!
Grab a coffee (or perhaps something a little more summery!) and let’s take a look at what’s changed and what’s coming next.
EMPLOYMENT RIGHTS ACT 2025
The Employment Rights Bill was published on 10 October 2024 (see our blogs on this here and here) and updates here and here. The Bill was passed on 16 December 2025 and has now become the Employment Rights Act 2025 (ERA 2025) as updated here. Many of its key provisions are coming into force this year, including this April.
The Government has published an updated timeline (here) for implementing key changes under ERA 2025, which replaces the original July 2025 roadmap (here).
Most of the implementation dates remain the same, but there are some changes:
The reforms expected by 30 October 2026 now include:
As we updated you here, under ERA 2025, from October 2026 (precise date still to be announced) trade unions will have a statutory right of physical and digital access to workplaces, including where no union is currently recognised. The right of access would give trade unions a right to enter into an access agreement that would allow them onto the employer’s premises for the purposes of organising and recruiting members, facilitating collective bargaining, or providing employees with support and representation.
The Government has now published a draft Code of Practice on the Right of Trade Unions to access workplaces (available here).
The Code of Practice will provide the primary source of practical guidance on how the new statutory right of trade union access will operate in practice. It sets out a staged process, encouraging employers and trade unions to reach agreement voluntarily before formal intervention is required.
The draft Code explains that:
The draft legislation also gives the CAC significant enforcement powers where an access agreement is breached; in which case the CAC may:
Financial penalties may also be imposed for repeated non-compliance. Where a further breach occurs within 12 months, the CAC will be able to impose penalties of up to:
Importantly, where an access agreement covers multiple workplaces, breaches across different sites will count cumulatively. This means an employer could ultimately face a penalty of up to £500,000, even where the earlier breaches occurred at different premises; provided they all relate to the same access agreement.
These new access rights represent a significant shift in the UK’s industrial relations framework. Coupled with the recently introduced reduction in the threshold for statutory trade union recognition, they are likely to make it easier for trade unions to organise workers in sectors where trade union presence has traditionally been limited.
While a small minority of employers may be able to resist a trade union’s attempts to access the workplace or its workforce (particularly those where the CAC will or may refuse to grant an access agreement, e.g. organisations with fewer than 21 workers) this is very much the exception.
For most employers, outright refusal will be very difficult and is likely to increase the risk of the union referring the matter to the CAC. A more pragmatic and effective strategy is to use the negotiation period to shape and ‘soften’ the terms of any access arrangements – reaching an agreement with the union that is workable and proportionate for the organisation.
Following last year’s consultation (see our update here) the Government has published its Response (available here) which confirms its intention to introduce mandatory ethnicity and disability pay gap reporting for employers with 250 or more employees.
Reporting requirements: Employers will be required to report using the same snapshot date and broadly the same metrics as those used for gender pay gap reporting. The proposed measures include:
In addition, employers will be expected to publish information about the composition of their workforce, including the proportion of employees who have voluntarily disclosed their ethnicity and disability status.
Equality action plans: As with gender pay gap reporting, employers will also be required to publish ethnicity and disability pay gap action plans.
These plans should explain the causes of any identified pay gaps and set out the practical steps the employer intends to take to reduce them over time. They can be aligned so that employers will not need to produce separate action plans.
Collecting the data: The consultation asked for views on how employers should collect ethnicity data for pay gap calculations. The Government remains committed to the approach set out in the consultation and employees:
Employers will be required to report comparisons between five broad ethnic groups:
To protect employee anonymity, smaller ethnic groups may need to be combined where employee numbers fall below a minimum reporting threshold. The Government has not yet confirmed what that threshold will be. Where individual groups are too small, employers will, as a minimum, be expected to report a comparison between White employees and all other ethnic groups combined.
For disability pay gap reporting, employers will need to compare the pay of disabled and non-disabled employees, using the definition of disability contained in the Equality Act 2010.
Enforcement: The Government intends to adopt a harmonised approach to enforcing gender, ethnicity and disability pay gap reporting. At present, the Equality and Human Rights Commission (EHRC) is responsible for enforcing compliance with gender pay gap reporting and investigating employers where reported data appears inaccurate or implausible. Although the consultation indicates that a similar approach will apply to ethnicity and disability reporting, it does not yet confirm whether the current enforcement framework will change.
Next steps: Mandatory reporting is realistically not anticipated before 2027 and potentially later, due to the parliamentary timetable. However, employers can begin preparing now by:
If you’d like assistance with Ethnicity, Disability or Gender Pay Gap reporting – or indeed any aspect of Pay and Reward in your organisation, we can help. Please get in touch; enquiries@menzieslaw.co.uk / 0117 325 0526
The Government has published a consultation available here which seeks views on what regulations are needed to implement the upcoming zero-hours measures in ERA 2025. The consultation closes on 25 August 2026.
Importantly, the Government is not proposing to ban zero-hours contracts. Instead, it aims to end what it describes as ‘one-sided flexibility’ and the consultation seeks input on the following three key areas:
Guaranteed hours: Workers on zero-hours contracts, or with hours below a certain threshold (which is likely to be between 8 and 20 hours per week) will qualify for guaranteed hours if they regularly work more than their contracted hours during a ‘reference period’. The Government’s preferred initial reference period is 12 weeks, as this would allow workers to qualify relatively quickly while still providing a reliable picture of their usual working hours. However, views are also being sought on whether the period should instead be 26 or 52 weeks.
Those who qualify can accept an offer reflecting their actual pattern or decline and stay working as they are. A worker will only qualify if they have worked sufficiently regularly during the reference period.
The consultation proposes two possible approaches:
Option B sets a higher threshold and is less likely to allow occasional overtime to trigger the right to guaranteed hours.
However, this may not apply to seasonal and temporary workers (where there are genuine fluctuations in demand) and employers are not required to make a guaranteed hours offer where a worker is on a limited-term contract shorter than the reference period (provided that contract was reasonable).
That said, agency workers are likely to be covered and hirers (or agencies) may be liable for guaranteed hours offers.
Reasonable notice of shifts: Eligible workers must be given reasonable notice of shifts, cancellations, and changes to shifts (to give workers greater certainty about when and how many hours they will be working). The regulations will set a presumed ‘reasonable notice period’ and the consultation is currently considering one to four weeks for directly engaged workers and up to five days to four weeks for agency workers. Failure to give reasonable notice will allow the worker to bring a Tribunal claim for the loss suffered.
It is also proposed that workers receive a payment for cancelled shifts, as well as shifts that have been ‘moved’ or reduced at ‘short notice’. For these purposes, ‘move’ means delaying or bringing forward a shift (or part of a shift). ‘Short notice’ is subject to the consultation, although the Government’s proposals are for this to be between one and seven days.
The Government is also considering a separate ‘very short notice’ tier, which would carry a higher payment due to the worker.
No payment will be due where the worker initiates the change.
Enforcement: The Government is proposing that the Fair Work Agency (FWA) enforce short notice payments through the Notice of Underpayment regime (as well as through Tribunals). This is because unpaid compensation is a clear, quantifiable sum and the Government considers the payments well suited to the FWA’s administrative enforcement.
However, guaranteed hours and reasonable notice enforcement would stay solely with the Tribunal.
The FWA’s preferred penalty for short notice payments is 50% of arrears, with a minimum of £100 per case and a maximum of £5,000 per worker.
For agency workers, the employment agency would usually make the payment, although it may be able to recover the cost from the hirer in prescribed circumstances.
Next steps: Although this is only at the consultation stage (and no regulations have been finalised) employers using zero or variable hours workers should begin assessing the operational impact now. For example:
We updated you here that ERA 2025 would include a ban on certain non-disclosure agreements (NDAs) that prevent workers from speaking out about all forms of harassment or discrimination (by the employer or a colleague) – unless the NDA was an ‘excepted agreement’ (in which case the NDA would remain valid even if it relates to harassment or discrimination).
The Government has now consulted on how the ban on NDAs should work in practice (available here). A central issue is what would amount to a valid ‘excepted agreement’. The Government’s proposition is that an exception would only be made if the NDA meets the following conditions:
Independent advice: The worker must receive written advice from an independent adviser explaining the terms, effect and legal limits of the confidentiality obligations.
Worker preference: After receiving that advice, the worker must confirm in writing that they wish to enter into the agreement.
Cooling-off period: The worker must be able to withdraw from the agreement within 14 calendar days, without penalty.
Accessible format: The agreement must be provided in writing and in a format accessible to all parties, including those with disabilities.
Incident already occurred: Excepted agreements could only be used where the harassment or discrimination has already happened (or is alleged to have happened).
Even when these conditions are met, NDAs would still not be able to restrict workers from making ‘permitted disclosures’: including reports to the police, regulators, legal, tax and medical advisers, victim support services, and protected whistleblowing disclosures. The consultation also asks whether disclosures to trade union representatives, close family members or prospective employers should also be permitted and unrestricted.
The Government is also considering widening the scope of the ban on NDAs where harassment or discrimination is alleged. While the current framework focuses on employees and statutory workers, the consultation explores significantly widening the circumstances in which NDAs are regulated to:
Next steps: The consultation closed on 8 July 2026, with reforms expected to come into force in 2027 (but will not apply retrospectively to existing agreements).
When these changes are implemented, these reforms are likely to significantly alter the use of NDAs in settlement agreements where harassment and discrimination has been alleged. In the meantime, employers should review the existing terms of settlement agreements, contracts of employment and any other documents imposing confidentiality obligations and identify where changes might be required.
The annual update to the Vento guidelines (which give ranges for injury to feelings awards in discrimination cases, depending on severity) have been published.
In respect of claims presented to a Tribunal on or after 6 April 2026, the Vento bands (as they are known) are as follows:
What do we already know?
We updated you here on the UK Supreme Court judgment in For Women Scotland which upheld a biological definition of sex for equality law purposes. Also that the Equality and Human Rights Commission (EHRC) had published an interim update on the practical implications of the decision and promised more in-depth statutory and non-statutory guidance.
What’s new?
The EHRC has now published its updated Statutory Code of Practice for services, public functions and associations, available here. The revised Code has been laid before Parliament and, unless rejected within 40 days, will come into force later this year.
The changes to the Code are wide-ranging and provide important clarification for organisations delivering single-sex services or managing issues relating to sex, gender reassignment and gender identity.
Key updates:
Updated definitions: The Code now confirms that, for the purposes of the Equality Act 2010:
Gender reassignment: The updated Code expands the guidance on gender reassignment, including that:
Gender Recognition Certificates (GRCs): The Code is updated to refer to the Supreme Court’s ruling that a GRC does not change a person’s legal sex for Equality Act purposes and that a person’s sex remains their biological sex, regardless of whether they hold a GRC. So a trans man with a GRC is a woman and a trans woman with a GRC is a man.
Trans people (with or without a GRC) are protected from discrimination on grounds of gender reassignment, sex (based on birth sex), and sex discrimination related to their acquired gender.
Asking about birth sex: The Code is updated to clarify that:
The Code highlights privacy protections under the Gender Recognition Act 2004 and data protection law, including restrictions on disclosing someone’s GRC status.
Sexual orientation: The protected characteristic of sexual orientation is updated in the Code to specify that a person who is attracted to people of the same sex is either a lesbian woman or a gay man.
New and updated examples: The Code includes refreshed examples covering:
Women-only associations.
These examples aim to help organisations apply the law more consistently. There is also an updated section on competitive sport (including when sex-based eligibility rules may be justified).
Separate and single-sex services: There are updated sections on separate and single-sex services for men and women (with detailed new content on how these interact with gender reassignment).
Key points include:
The Code emphasises that to justify separate and single-sex services, providers must show:
Policies and practical implementation: The Code encourages service providers to:
Communal accommodation: Updated guidance confirms that exclusion based on sex or gender reassignment is lawful only if proportionate and managed in a way that is fair to both men and women.
Additional updates: The Code also includes:
The EHRC has also indicated it will update the Employment Code of Practice in due course to reflect these developments and we’ll update you when it does.
From 19 June 2026 employers must provide a way for individuals to directly raise data protection complaints with them and have an appropriate complaints handling process in place.
This is due to the introduction of a new section 164A into the Data Protection Act 2018 (DPA) via the Data (Use and Access) Act 2025. The new provision creates a statutory right for individuals to raise data protection complaints directly with an organisation, and they will be expected to do so before escalating the matter to the Information Commissioner’s Office (ICO).
ICO guidance (available here) provides that organisations should:
Importantly, neither the DPA nor the ICO insists on a dedicated data protection complaints procedure. Although the ICO does suggest that putting one in place could make handling complaints easier. The ICO guidance interprets ‘without undue delay’ (s164A DPA) as ‘without unjustifiable or excessive delay’. In other words, as quickly as is reasonably practicable in the circumstances.
If the complaint is mixed and not purely about data protection, don’t assume that you can apply the timescales set by other policies or sector-specific rules (such as financial services). The ICO says that if you can complete the data protection element of the investigation in a shorter amount of time, you must do that.
The ICO says investigation into the complaint should begin from the day the complaint is received and the 30-day acknowledgement period is not an excuse for inactivity during this time. In terms of the extent of the investigation, this will depend on the circumstances of each complaint and the complexity, scale, and level of harm caused.
How the response is communicated to the individual is up to the organisation and it doesn’t need to be in writing. In practice, it may often be more convenient to resolve the issue over the phone, provided there is a clear note or recording of the conversation, or with written confirmation sent afterwards where appropriate.
As for the content of the response, the ICO guidance says employers should clearly explain how they have addressed the complaint and, where relevant, outline any action taken as a result. For example:
Make sure the information you provide is sufficient to justify the outcome. For example, a brief dismissal of the complaint is unlikely to satisfy the employee or the ICO.
There is no obligation under the DPA to provide an appeal process. However, the ICO guidance suggests employers provide more detail or clarify their decision, or set up a more formal review process.
The guidance also says it’s good practice (but not mandatory at this stage) to let the employee know they have the right to complain to the ICO and to provide its contact details.
If the ICO does get involved, any non-compliance will likely be treated as a breach of data protection rules. This leaves the employer potentially exposed to the ICO’s full range of enforcement powers, including:
PERMANENT HEALTH INSURANCE (PHI) AND DISMISSAL
Summary: Can PHI benefits survive dismissal and remain enforceable as wages after employment ends?
Yes, says the Court of Session in McMahon v AXA ICAS Ltd (available here).
Background: Permanent health insurance (PHI) – often referred to as group income protection – provides an employee with a portion of their salary (usually 50–75%) if they cannot work because of long-term illness or injury. These payments normally come from an insurance provider rather than directly from the employer. They usually start after a waiting period of 26 to 52 weeks and most schemes require the employee to remain employed in order to receive the benefit.
Facts:
Ms McMahon started working for AXA in 2000. In 2013 she was dismissed because a long-term illness meant she could no longer work.
Ms McMahon’s employment contract said she would be entitled to PHI benefits after 26 weeks’ sick leave. The scheme promised 75% of her normal pay (minus state benefits), rising by 5% each year, until she recovered or reached age 65. AXA was supposed to have an insurance policy in place to fund these payments, but due to an administrative mistake, no policy existed.
Years after her dismissal, Ms McMahon brought a claim arguing she should still receive PHI payments from the date she was dismissed onwards. She said her contract included an implied term stopping AXA from dismissing her while she was off sick, meaning her dismissal should effectively be treated as invalid.
Tribunal decision
The Tribunal agreed Ms McMahon was owed PHI payments up to the point of dismissal, but said it could not award payments after dismissal because they did not count as ‘wages’ under the unlawful deduction rules in the Employment Rights Act 1996 (ERA 1996).
Ms McMahon appealed.
EAT decision
The EAT agreed with the Tribunal and dismissed the appeal. It said that PHI payments after employment ends cannot be claimed as ‘wages’. Any claim for post-dismissal PHI would have to be brought as a breach of contract claim instead.
Ms McMahon appealed to the Court of Session (the Scottish equivalent of the English Court of Appeal).
Court of Session decision
The Court of Session allowed her appeal.
The key question was whether AXA could rely on the dismissal to avoid paying PHI benefits. The court said no.
It noted that ‘wages’ is defined broadly under s27 of ERA 1996 and can include sums payable in connection with employment, such as PHI. AXA had effectively taken on the role of an insurer, promising to pay benefits as long as Ms McMahon met the eligibility criteria – and one of those criteria was being unable to work. It therefore did not make sense for AXA to stop payments simply because her illness meant she could not work.
The Court said there were several legal routes to reach this conclusion, including:
On either analysis, the PHI payments fell within the extended definition of wages in s27 ERA 1996. If Ms McMahon remained eligible, then AXA remained liable to make the PHI payments.
Implications:
This decision is important for employers who offer PHI benefits. It confirms that, in some situations, PHI payments can still count as ‘wages’ under s27 ERA 1996 even after an employee has been dismissed. That means employees may be able to claim ongoing PHI payments via an unlawful deduction from wages claim in the Tribunal, without facing the financial cap and limitation issues that apply to breach of contract claims.
That said, this case is unusual – especially the employer’s failure to put the employee into the PHI scheme and the Court of Session’s views on the unfairness to the employee – and may have limited impact beyond cases with comparable facts.
Nevertheless, the decision highlights the risks of dismissing employees who are, or may be, entitled to PHI benefits.
Employers should review their contracts and benefit documents to make sure:
There should be a contractual term which:
However, even with careful drafting, employers cannot remove PHI-related risk entirely and employers should remain cautious when considering dismissal for long-term sickness where PHI applies. As this case shows, dismissing an employee does not always end PHI obligations and may leave the employer exposed to significant ongoing liability under the unlawful deduction from wages rules.
Although the judgment comes from the Scottish courts, it is likely to be very influential in England and Wales. The Court relied on UK law (i.e. the wording of ERA 1996 and Supreme Court case law) which means Tribunals are likely to follow the same approach – unless a higher court decides differently.
CASE UPDATE: RIGHT TO BE ACCOMPANIED
Summary: Can the statutory right to be accompanied (under section 10 of the Employment Relations Act 1999 (ERelA)) to a disciplinary or grievance hearing be engaged if the employee does not make a request to be accompanied?
No, says the EAT in Wolfe v Taka Mayfair (available here)
Facts: The employee was the Head Sommelier at the employer’s restaurant. He alleged that, following the end of a shift, and without advance warning, the two owners of the restaurant had a face-to-face discussion with him, without explaining its purpose or what might happen, at the end of which he was dismissed.
The employee brought a claim for breach of the right to be accompanied under s10 ERelA. The employee argued that he never asked to be accompanied, because he did not realise until too late that the meeting could end in dismissal.
EAT decision
The EAT held that the claim was bound to fail. The statutory right to be accompanied arises only where a worker actually requests a companion. If no request is made, the right does not engage. The legislation is explicit, leaving no scope to imply a duty on employers to explain the purpose of a meeting or to highlight the right to be accompanied.
Although an employer’s silence may be relevant in assessing liability in an unfair dismissal claim, it does not amount to a breach of s10 ERelA and the right to be accompanied. Any perceived gap in protection is a matter for Parliament, not the courts.
However, the EAT also observed – without needing to decide the point – that a request made during a meeting, once its true nature becomes apparent, might be enough to engage the right.
Implications:
This decision makes it clear when the legal right to be accompanied actually applies, and when an employer can be held responsible for not allowing a companion. Employers are not automatically liable under s10 ERelA just because a worker goes into a disciplinary meeting – planned or last-minute – without someone with them. The right only applies if the worker asks to bring a companion. If they don’t ask, the duty doesn’t arise.
That said, if an employer doesn’t tell someone what a meeting is really about, or doesn’t warn them that it is a disciplinary meeting and that they can bring a companion, this can still cause problems in other types of claims, especially unfair dismissal. The ACAS Code of Practice on disciplinary and grievance procedures says employers should tell employees about their right to be accompanied in disciplinary and grievance processes, and Tribunals will look at whether the employer followed the Code when deciding if the process was fair.
So, best practice stays the same: employers should send clear written invitations to disciplinary and grievance meetings that explain what the meeting is for and remind employees of their right to bring a companion. This helps avoid misunderstandings and reduces the risk of disputes later on.
CATEGORIES: Employment Law,
TAGS: Case update, Right to be accompanied, Unfair Dismissal, Wolfe v Taka Mayfair
CASE UPDATE (4): PROVIDING PAYSLIPS UNDER ERA 1996
Summary: Does providing employees with online-only payslips satisfy an employer’s duty under section 8 of the Employment Rights Act 1996 (ERA 1996) to give workers an itemised pay statement?
Yes, says the EAT in Leedham v Royal Mail available here.
Facts: The employee was employed by Royal Mail as a postal operative. Royal Mail switched from paper to digital-only payslips, accessible via a smartphone app or web browser. The employee had a smartphone and could also have used a local library to access his payslips at no cost, but chose not to.
The employee brought a claim for breach of s8 ERA 1996, arguing Royal Mail had failed to give him an itemised pay statement.
EAT decision:
The EAT dismissed the employee’s claim. It said that the purpose of s8 ERA 1996 is simply to make sure employees can understand how their pay has been worked out and spot any deductions. The law does not require payslips to be given in a particular format. Electronic payslips are fine as long as employees can access them easily.
The EAT stressed that this depends on the facts. An electronic system is likely to comply with the law if:
But a system may fall short if it:
The EAT also said that requiring employees to use their own phone or similar device does not, on its own, stop an employer from meeting its legal duty. However, different issues could arise if the system tracks or extracts data from an employee’s personal device – although that point did not need to be decided in this case.
Implications: For employers already using digital payslips, this decision is reassuring. If your system is well designed, easy to use and gives employees free, straightforward access to their pay information, it is likely to meet the legal requirements in s8 ERA 1996.
The key things to check are:
For employers contemplating a move to digital payslips, the case confirms that electronic payslips are legally acceptable — but the way you introduce them matters. Clear communication, support for employees who cannot use digital systems for medical or other reasons, and awareness of any privacy issues linked to app-based systems, should all be part of your planning.
Case update: UNFAIR DISMISSAL AND REASON FOR DISMISSAL
Summary: In conduct unfair dismissal claims, can a Tribunal take into account what a decision-maker might or could have decided?
No, says the EAT in Chand v EE (available here). Tribunals must focus solely on what they actually decided.
Facts: The employee, Ms Chand, had 16 years’ service as a Senior Customer Advisor. She was dismissed for gross misconduct following four incidents involving customer accounts. The employer concluded that each incident involved fraudulent conduct and that the relationship of trust and confidence had been irreparably damaged. The employee accepted that she had made errors, but denied any dishonesty. The employee brought a claim for unfair dismissal.
Tribunal decision: The Tribunal held that the employer did not have reasonable grounds for believing that any of the four incidents amounted to fraud. However, it held that one of the incidents constituted a serious breach of policy which, taken in isolation, was capable of amounting to gross misconduct. On that basis, the Tribunal concluded that the dismissal was fair. The employee appealed and the employer cross-appealed against the finding that its belief in fraud was not reasonably held.
EAT decision: The EAT dismissed the employer’s cross-appeal. It held that the Tribunal had undertaken a detailed analysis of the evidence available to the decision-maker and was entitled to conclude that there were no reasonable grounds for a belief in fraud.
The EAT allowed the employee’s appeal and substituted a finding of unfair dismissal. The EAT emphasised that, in cases of conduct dismissal, a Tribunal must identify the employer’s actual principal reason for dismissal. This requires an examination of what the decision-maker in fact decided, rather than what they could have decided.
On the Tribunal’s own findings, the employer’s reason for dismissal was a composite one. It found that the dismissing officer had not viewed each of the allegations separately and said that if there had been fewer allegations, then the employee’s length of service may have made a difference to their decision. The Tribunal had not therefore made any finding that the employer’s sole or principal reason for dismissal was the allegation of a serious breach of policy.
While that breach could have been a reason for dismissal, it was not the employer’s actual reason for dismissal. The employer’s decision was based on the belief that all four allegations amounted to fraud. This was not based on reasonable grounds and therefore the only conclusion open to the Tribunal was that the dismissal was unfair.
The EAT therefore substituted a finding of unfair dismissal and remitted the case for a remedy hearing.
Implications: Tribunals are required to scrutinise the decision-maker’s reasoning at the time of dismissal. It is not sufficient that one aspect of the conduct might, when viewed in isolation, have justified dismissal if that was not in fact the principal reason relied upon.
This is a good reminder for employers that:
Combined reasons rise or fall together: Where dismissal is based on multiple allegations, they must be considered as a whole. If a central element (such as fraud) is not reasonably supported by evidence, the dismissal is likely to be unfair.
Serious allegations need solid evidence: Allegations of dishonesty or fraud must be backed by clear evidence; relying on any allegation which is unproven can weaken an otherwise defensible decision.
No fallback on lesser reasons: A dismissal cannot be justified after the fact by relying on a lesser allegation if that was not the employer’s true reason at the time.
Case update : DISCRIMINATION – TRANS EMPLOYEES AND SINGLE SEX SPACES
Summary: Should employers allow trans employees to use single sex spaces based on their gender identity, rather than based on their biological sex?
No, says the Tribunal in Hutchinson and others v County Durham and Darlington NHS Foundation Trust (available here).
Background: The Supreme Court’s judgment in For Women Scotland established that a ‘man’ under Equality Act 2010 (EA 2010) is a biological man and a ‘woman’ is a biological woman. A trans man (with or without a gender reassignment certificate (GRC)) remains a ‘woman’ under EA 2010 and a trans woman (with or without a GRC) remains a ‘man’ under EA 2010. This meant that all of the protections and rules set out in EA 2010 applied based on the biological sex of the individual. For more information on this decision see our update here.
Facts: The employer, County Durham and Darlington NHS Trust, operated a policy (‘Transitioning in the Workplace’) permitting transitioning employees to use single-sex spaces, such as changing rooms, in line with their self-declared gender identity rather than their biological sex.
A trans woman employed by the Trust began using the female changing rooms. Ms Hutchinson and several other female employees who also used those facilities raised concerns. The Trust quoted its policy in response to the complaints and did not adequately address these. It instead criticised the employees, who were told they needed to be educated on trans rights and to broaden their mindsets.
The employees brought discrimination claims including:
Tribunal decision:
Applying For Women Scotland, the Tribunal held:
The Tribunal said that the trans woman should instead have been provided with ‘alternative, suitable and dignified facilities’, rather than permitting her to use the female changing room. Also that expecting the trans woman to use male facilities may also have had the affect of violating her dignity and potentially her Article 8 European Convention on Human Rights (ECHR) right to a private life.
Implications: This case highlights the highly sensitive and complex issues surrounding the use of single-sex facilities by trans individuals and the challenges employers face in balancing the rights of employees with competing protected characteristics. A clear, well-drafted equality, diversity and inclusion policy is essential to support and guide decision-making.
Although Hutchinson will be of particular interest to employers reviewing their policies on single-sex facilities, it is important to recognise that as it is only a Tribunal-level decision, it is not binding.
Further guidance is expected when the Equality and Human Rights Commission (EHRC) publishes its revised Code of Practice for Services, anticipated this year. In the meantime, employers should continue to mainly rely on the principles set out in For Women Scotland (as set out in our update here) and the current EHRC guidance which advises employers to provide sufficient single-sex spaces but also adequate facilities for trans employees. This is likely to be a matter of resources available to each employer, with large-scale employers expected to take more extensive steps than a small employer with few employees.
5.0/5