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Monthly Bulletin Archive
4th December 2025
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 28th October 2025. The impacted provisions include:
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.
Talking about retirement with employees can feel like a legal and practical minefield – and with good reason. Handled poorly, these discussions can lead to broken trust, constructive dismissal and age discrimination claims.
The Acas guidance is clear: don’t raise retirement unless the employee does first. This was highlighted in Tapping v Ministry of Defence, where HR asked a civil servant in his 60s about his retirement plans after he raised a grievance about how his health condition was being managed. The tribunal found that this amounted to unjustifiable direct age discrimination, as a younger employee wouldn’t have been asked the same question.
Top tip: Instead of asking older employees about retirement, ask all employees – of all ages – about their short-, medium- and long-term career plans in regular check-ins or appraisals. This avoids singling anyone out and keeps conversations inclusive and legally safe.
If the employee raises the topic, it’s fine to explore their plans. You might discuss:
Stay open and non-committal unless and until formal notice is given – people’s plans change, and assumptions can lead to risk.
Where retirement is raised, some employers consider offering an ex gratia payment as a gesture of goodwill. But be cautious: ex gratia payments are not always tax-free just because they’re linked to someone leaving. Any lump sum (including an ex gratia payment) paid to an individual who retires or is nearing retirement on termination is potentially taxable under s393 and 394 ITEPA and, therefore, would not benefit from the £30,000 exemption. Under these sections, any ‘relevant benefits’ (including sums paid on, after or in anticipation of retirement), received by an individual under an employer-financed retirement benefits scheme, count as employment income. The word ‘scheme’ has a wide meaning. In Forsyth v HMRC, the First-tier Tax Tribunal confirmed that a compromise agreement (as settlement agreements were then known) could be a ‘scheme’.
If you’re considering a payment on exit, take tax advice and, remember, there’s no legal requirement to make a retirement payment at all.
Earlier this year, the TUC reported that UK workers put in £31 billion worth of unpaid overtime, with 3.8 million employees averaging 7.2 extra hours a week. What these figures tell us is that unpaid overtime – working over and above your agreed hours of work for no additional pay – is a clear feature of working life in the UK. While this may appear to benefit businesses, it carries real legal and practical risks for employers.
Employees must not work more than 48 hours a week on average (over 17 weeks) unless they’ve signed an opt-out. Failure to comply could lead to tribunal claims or even criminal penalties.
Action: Ask employees likely to work overtime to sign a working time opt-out. They can’t be treated unfairly for refusing and have the right to opt back in.
Most workers must have:
Action: Encourage breaks and limit out-of-hours communications. Flexible working is fine but if rest rules are breached, employees may claim compensation.
Unpaid overtime can reduce an employee’s average hourly pay below the NMW – especially if combined with salary sacrifice or other deductions.
Action: Track actual hours worked and check annually that pay complies with NMW. HMRC can issue penalties of up to 200% of any underpayment.
If employees are pushed too hard, excessive overtime expectations may breach trust and confidence, leading to constructive dismissal claims.
Action: Use any overtime clause reasonably and avoid normalising long hours.
Requiring excessive overtime may indirectly discriminate – for example, against disabled staff or women with caring responsibilities – unless it’s objectively justified.
Action: Apply overtime expectations flexibly and consider reasonable adjustments where needed.
Long hours can lead to burnout, sickness, poor performance and legal claims. You also have duties under health and safety law to prevent work-related stress.
Action:
Unpaid overtime might feel like a productivity boost – but unmanaged, it could cost your business far more than it saves.
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.
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:
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:
The government has invited input from employers, HR professionals, trade unions, and individuals. Early preparation and participation in the consultation process is recommended.
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.
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:
The second proposal would require all employers to inform workers of their legal right to join a trade union.
Consultation points include:
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.
Neurodivergence is an umbrella term encompassing a wide range of conditions which all have differing (and very personal) impacts on the individual affected. This makes it a bit of a moving target for HR. Neurodivergence encompasses a range of conditions you will have heard of, including autism, dyspraxia, ADHD and dyslexia.
It is likely that many neurodivergent workers will satisfy the Equality Act 2010 definition of disability – having a mental impairment which has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. Normal day-to-day activities can include social interaction and communication. The word substantial is also potentially misleading – it really means more than minor or trivial.
The Employment Tribunal concentrates on the impact of the condition rather than its precise medical diagnosis when deciding whether a person’s neurodivergence amounts to a disability.
Meeting the legal definition of disability gives neurodivergent workers important rights and protections at work. These include:
Employment Tribunal cases involving neurodivergence are on the rise. Many of these cases involve claims of failure to make reasonable adjustments. Where an employer is aware (or ought to be aware) of an employee’s neurodivergence as a disability, and a ‘provision, criterion of practice’ (PCP) places the employee at a substantial disadvantage, then the employer must make reasonable adjustments to remove that disadvantage.
A recent example of this was the case of Khorram v Capgemini, where the Claimant disclosed her diagnosis of ADHD to her employer and explained that the condition significantly impacted her executive functioning, particularly in managing unstructured tasks, coping with ambiguity, and handling excessive multitasking.
In this case, the PCPs were requiring multitasking and requiring deadlines to be observed. Both of these were found to place the Claimant at a substantial disadvantage. The Respondent failed to make the following reasonable adjustments: setting achievable and realistic tasks; failing to provide neurodiversity and AHDH awareness training to the Claimant’s colleagues; failing to implement coaching for the Claimant on time management and communication.
Employers should aim to create a workplace where neurodivergent employees feel safe to come forward and become more visible. Once visible, you will be better placed to support them and avoid misunderstandings at work. Here are some tips for how to do this:
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.
From the beginning of any disciplinary process, employers should confirm:
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 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:
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:
The law does not provide for a distinct right to time off for religious holidays or observance. However, when an employee’s request for time off work is rooted in a religious holiday or observance, employers should exercise caution before refusing such requests.
Employees have protection against discrimination from day one of employment. Religion or belief is one of the characteristics protected from discrimination under Equality Act 2010. Employers need to be careful, in particular, of the risk of indirect discrimination claims in their handling of requests for religious time off. Indirect discrimination occurs where an employer operates a provision, criterion or practice which applies to everyone. Where that PCP places someone with a protected characteristic at a particular disadvantage when compared with others, then the operation of the PCP will be indirectly discriminatory unless the employer is able to objectively justify their decision.
An illustration of the risks of indirect discrimination associated with claims for religious time off can be found in the case of Bialick v NNE Law. Mr Bialick was an Orthodox Jew who booked leave during the COVID pandemic. Two of those days were Passover days when his faith forbade him to work. However, he needed to self-isolate in the fortnight before his holiday for COVID reasons. NNE Law had a policy that employees must not be absent for more than two weeks, so it withdrew authorisation for the holiday. He took the Passover days off anyway and the firm dismissed him.
The Employment Tribunal awarded Mr Bialick around £26,500 in compensation for indirect religious discrimination. NNE Law had applied its cancelling annual leave policy to all employees equally regardless of faith. However, this policy disadvantaged non-Christian employees whose faith required them not to work on certain days. They had to, in the tribunal judge’s words, ‘choose whether to work when they are not permitted to work or be dismissed’. In contrast, the law firm didn’t require Christian employees to work at Christmas or Easter.
You can justify indirect discrimination if it’s a proportionate way to meet a valid business aim. Here, though, the law firm couldn’t justify the discrimination because there was no evidence it failed to meet clients’ needs due to Mr Bialick’s absence. Even if there had been something like a looming deadline – perhaps a court hearing – the tribunal said there would have been less discriminatory alternatives to cancelling Mr Bialick’s leave. The firm could have, for example, passed his work to colleagues or a locum, or applied to the court for an extension or postponement.
It also shows that before you refuse a request for time off for religious reasons – or withdraw permission for the leave – you must think through and document your reasons and why there’s no workable alternative.
The Equality and Human Rights Commission has published guidance entitled, ‘Religion or belief: how do I handle employee requests?’. The guidance explains that you don’t automatically have to grant a request made on religious grounds. Instead, it says you should ask yourself these five questions before making your decision:
These five steps are a useful guide for employers dealing with requests for religious time off. It is critical that any refusal can be justified and that alternatives have been clearly considered – and documented.
Under the Equality Act 2010, age is a protected characteristic – and crucially, it applies to workers of all ages, not just older staff.
There are four main types of age discrimination in UK law:
There are some limited exceptions – for example, giving long-service benefits, or hiring actors of a specific age to play a role.
Takeaway: Train managers to avoid age-related assumptions and jokes – and remember, age bias affects younger staff too.
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:
Mr Rashbrook’s claim was, unsurprisingly, dismissed.
Here to Help, Not Replace Experts:
The information contained in this blog presented for general informational purposes only. While we strive to provide accurate and up-to-date content, legal and HR practices can evolve rapidly. This blog is not a substitute for professional advice.
For specific questions or concerns regarding your unique situation, we highly recommend taking professional advice and booking a consultation with a Sapphire HR Consultant. Our consultants are experts in the field and can provide tailored guidance to address your specific needs.
We aim to work truly in partnership with our client organisations and to develop a high-quality, competent HR Service for all clients, the HR Provider that they can rely on and who gets to understand the culture and vision of your business.
