October Bulletin

Trade union access: Navigating the new rules

Independent trade unions now have a statutory route to access workplaces and communicate with workers, following the introduction of these rules on 30th October 2026. For businesses with little or no existing union involvement, this represents a significant shift.

What does ‘access’ mean?

A union with a certificate of independence can request access to meet, support, represent, recruit, or organise workers, and to facilitate collective bargaining. However, this right does not extend to organising industrial action. Key aspects of this framework include:

• No recognition required: The union does not need to be officially recognised by the employer.
• No membership prerequisite: The workers involved do not need to be union members.

The two forms of access

Access typically takes two main forms:

• Physical access: Union officials enter the physical workplace.
• Communication: Direct or indirect communication with workers, including digital access (such as an employer facilitating an online meeting or circulating an email on the union’s behalf).

This does not grant the union direct entry into the employer’s IT systems or employee data. Employers cannot unilaterally insist exclusively on digital access over physical access, or vice versa. A statutory presumption in favour of access remains in place, provided it does not unreasonably interfere with normal business operations.

Can an employer say no?

While businesses have some scope to resist an access request, issuing a blanket refusal is exceptionally difficult to justify. Refusing access entirely is only appropriate when it is genuinely reasonable under all the circumstances.

The Central Arbitration Committee (CAC) is legally required to refuse statutory access if the organisation employs fewer than 21 workers overall. A refusal may also be deemed reasonable under specific conditions, such as:

• An independent trade union is already officially recognised for the affected staff
• An active statutory recognition process is currently underway
• There are overlapping access requests or pre-existing arrangements

Furthermore, legitimate operational, health, safety, and security considerations can influence the specific terms on which access is permitted.

How does the process work?

When a trade union submits a formal access request, employers have 15 working days to provide a response. This is followed by a standard 25-working-day negotiation period. If both parties fail to reach an agreement, either side can refer the matter to the CAC, which has the authority to decide whether access should be granted and establish the binding terms.

Key priorities for HR

Given these statutory rules, HR teams should focus on:

• Managing requests: Explicitly deciding who will receive, log, and process incoming access requests.
• Meeting deadlines: Keeping a close eye on the tight statutory timelines.
• Operational planning: Evaluating how both physical and digital access can be implemented smoothly without causing unnecessary disruption to day-to-day business operations.

Trade union statement duty: Implementation postponed to January 2027

A notable change originally slated for October under the Employment Rights Act 2025 has been deferred. While the mandate compelling businesses to inform workers of their right to join a trade union was initially scheduled for 30th October 2026, the Government has officially moved its implementation date to 1st January 2027.

Alongside this delay, the Government released its response to the previous year’s consultation, offering organisations a much clearer framework regarding how the obligation will operate in practice.

Employer responsibilities

Under the new rules, businesses must issue workers with a prescribed, standardised statement. Employers cannot alter the core wording, though minor workplace-specific details may be incorporated. The statement will cover: The functions of trade unions, including recognised unions and applicable statutory access agreements. Statutory worker rights concerning union membership. Direct signposting to the Certification Officer’s official list of trade unions.

Delivery requirements for new and existing staff

• New employees: The notice must be handed over directly alongside their written statement of employment particulars.
• Existing employees: Employers have greater flexibility here. Notices can be issued directly or made continuously accessible via an intranet or staff handbook. Staff must initially receive the statement (or instructions on where to access it) by 5th April 2027.
• Ongoing compliance: Businesses using direct delivery must reissue the notice annually by 5th April. Those utilising indirect channels (like an intranet) must instead issue an annual reminder pointing to its location.
• Changes in recognition: If a recognised union or a union holding a statutory access agreement changes, the statement must be reissued within one month.

Recommended next steps for HR

Although the postponement provides HR teams with valuable breathing room, preparation should still be underway. Organisations should take the opportunity to:

• Identify any currently recognised unions or active statutory access agreements.
• Determine the preferred method for communicating with existing personnel.
• Monitor for upcoming regulations and detailed guidance expected ahead of the January rollout.

Bereavement leave: Is your policy ready for April 2027?

While many businesses already provide some level of compassionate or bereavement leave, a mandatory statutory minimum will take effect in April 2027.

The Government has finalised the operational details for this new day-one right, meaning HR teams must evaluate their existing frameworks against the statutory floor to determine if adjustments are required.

Who qualifies for the leave?

Eligible employees can take up to two weeks of unpaid leave following the loss of:

• A spouse or civil partner, or a long-term partner.
• A parent, adult child, or sibling.
• A broad spectrum of step, half, adoptive, foster, and kinship relations.

However, the legal framework contains specific boundaries. Grandparents, grandchildren, extended family members, close friends, and chosen family are omitted from the statutory definition, though organisations are free to maintain more generous provisions.

Additionally, pregnancy loss prior to 24 weeks is included, spanning miscarriages, ectopic and molar pregnancies, terminations, and IVF embryo transfer losses. This entitlement applies to the pregnant individual as well as their partners and intended parents.

How the new scheme operates

Flexibility is central to the policy.

• Timing & structure: The two-week allocation aligns with the employee’s regular working hours and can be split into individual days rather than taken consecutively. Employees have a 56-week window following the bereavement to use their allowance.
• Notice periods: Notice requirements are minimal. For the first eight weeks post-bereavement, notice must only be given prior to starting work that day, or as soon as practicable afterwards. After eight weeks, one week’s notice is required.
• No evidence required: Employers are legally barred from demanding proof or evidence of the bereavement.

Relationship with Parental Bereavement Leave

Parental Bereavement Leave remains a distinct, separate entitlement. If a child under 18 passes away, or a stillbirth occurs after 24 weeks, staff may still qualify for Parental Bereavement Leave alongside potential Statutory Parental Bereavement Pay. In certain scenarios, an individual could be eligible under both statutory schemes.

Recommended action for HR

Organisations should proactively audit their existing bereavement, compassionate leave, and pregnancy loss guidelines ahead of April 2027. Key areas to review include eligibility criteria, leave allowances, pay structures, flexibility of use, and notice expectations. Because the statutory scheme acts as a floor rather than a ceiling, the primary challenge for HR is integrating these rules with what the business already offers.

Tribunal compensation: Factoring in benefits

When employment tribunals award damages for lost pay, the core objective is to make whole the actual financial detriment experienced by the worker. Consequently, any welfare benefits gained during that timeframe often require deduction. However, a complex legal dilemma emerges if the compensation payout itself disqualifies the individual from receiving those very benefits. This exact question was examined in the case of SBH Windermere v Nunns.

SBH Windermere v Nunns

Following successful harassment claims, Mr Nunns secured six months’ worth of compensation for lost earnings. Initially, the tribunal subtracted anticipated Universal Credit payments from the award. A complication arose because the influx of compensation pushed his capital reserves past the £16,000 Universal Credit threshold, rendering him ineligible to actually collect the benefit.

Recognising this discrepancy, the tribunal revised its calculations and boosted the earnings award. The Employment Appeal Tribunal (EAT) upheld this decision, noting it would fail to achieve genuine compensation if deductions were made for funds the claimant never actually received. Nevertheless, the matter required further review. The employer countered that Mr Nunns could have alternatively pursued New Style Jobseeker’s Allowance or New Style Employment and Support Allowance, schemes unaffected by personal savings. Because the calculation was reopened, the tribunal was instructed to evaluate this broader mitigation argument and determine if those alternative benefits should have been claimed.

Key takeaways for HR

• Beyond basic salary: Remedy assessments extend far beyond standard wage calculations.
• Evaluating real-world financials: When gauging potential tribunal liabilities, employers must analyse benefits actually collected, post-award eligibility status, and alternative provisions the claimant could reasonably have pursued to mitigate losses.
• A pragmatic approach: Nunns highlights that calculating compensation demands scrutiny of an individual’s true financial standing rather than relying solely on theoretical benefit entitlements.

Equal pay: Can market rates justify wage disparities?

Organisations occasionally need to increase remuneration for specific roles purely to recruit and retain adequate headcount. However, complications arise when those higher-paying roles are predominantly held by men, whereas employees performing work of equal value are predominantly women. Valuable insight into this issue is offered by the Employment Appeal Tribunal (EAT) ruling in Thandi vs Next.

Thandi vs Next

In this case, over 3,500 predominantly female retail sales consultants launched equal pay claims against Next, drawing a comparison with warehouse staff, who were a slight majority male. Although both cohorts executed completely different jobs, an official finding had already established that their work held equal value. Despite this, warehouse operatives received higher pay. Next defended the structure with a commercial rationale: warehouse market rates were inflated, forcing the business to offer higher wages to attract and retain sufficient staff, pressures that did not affect their retail employees.

While the initial employment tribunal dismissed Next’s justification regarding basic pay, the EAT ruled that the tribunal had evaluated the matter erroneously.

The EAT’s findings

• Legitimate business aim: Offering the market rate required to secure and retain adequate warehouse personnel can constitute a legitimate commercial objective.
• Proportionality: Evidence demonstrated that Next was offering precisely what was necessary to secure warehouse staff, and no higher.
• Broader affordability: The reality that Next might have possessed the financial capacity to raise retail pay did not invalidate the justification for paying warehouse workers more.

Consequently, Next prevailed in its appeal regarding basic pay and select components of remuneration, though the retail workers maintained victory concerning other disparities, including paid breaks alongside overtime and night-time premiums.

Key HR takeaways

This ruling does not grant employers carte blanche to maintain gender-based pay gaps simply by citing market rates. If market pressures drive wage variations, HR must be equipped to evidence and explain the situation by demonstrating genuine recruitment challenges, retention struggles, and how specific rates were calculated. Pay justifications require ongoing monitoring, as recruitment difficulties that justify a wage differential initially can become obsolete if market conditions evolve. Ultimately, scrutinising pay differences between male- and female-dominated roles is vital, and compiling clear commercial evidence at the time decisions are made places businesses in a much stronger defensive position.

Failure to make reasonable adjustments: EAT confirms personal liability for managers

Discrimination claims extend beyond corporate liability, as individual staff members can occasionally find themselves named personally in employment tribunal litigation.

While the Equality Act 2010 holds businesses vicariously liable for discriminatory actions committed by personnel during their employment, the individual perpetrator can also face personal liability. This concept is straightforward when a manager makes offensive remarks or harasses a colleague, but questions remained as to whether it applies to duties technically resting with the employer, such as making reasonable adjustments. The Employment Appeal Tribunal (EAT) ruling in Merriman v 1st Staff Ltd and others has confirmed that it does.

Merriman v 1st Staff Ltd & Others

Ms Merriman worked via an agency tutoring an individual with special needs. After contracting a disability that hindered physical attendance, she requested a transition to online teaching. Consequently, she launched claims alleging a failure to make reasonable adjustments against both the agency (1st Staff) and four individual workers.

The initial tribunal dismissed the claims against the individual staff members, reasoning that because the legal duty to adjust fell solely upon the employer, only the business could be held liable. However, the EAT overturned this view.

The EAT emphasised that while the statutory obligation sits with the employer, a company operates entirely through its staff and agents. If an employee’s conduct during their duties leads to a breach of that obligation, they can be held personally liable alongside the company. As a result, the litigation against the four individuals was reinstated.

Key takeaways for HR

The Merriman ruling serves as a vital reminder that managing reasonable adjustments is much more than just a corporate obligation. Human resources teams should incorporate the lessons from this case into management training programmes concerning workplace disability issues. Highlighting the risk of personal liability can sharpen managers’ focus on achieving fair and equitable outcomes when processing adjustment requests. Furthermore, managers evaluating these requests must understand the legal obligations, recognise when to escalate matters to HR, and actively engage with potential adjustments. Most notably, an individual can still face personal liability even if the employer successfully proves that it took all reasonable steps to prevent the discrimination.

Employment Tribunal claims: Primary time limits extended to six months

One of the major reforms introduced via the Employment Rights Act 2025 took effect on 1st October 2026, shifting standard primary limitation periods from three months to six months for relevant employment tribunal claims. As a result, individuals now possess an extended window to evaluate their options and initiate Acas Early Conciliation.

Practical implications for businesses

The extension of this timeframe carries several operational consequences beyond merely altering calculations:

• Prolonged disputes: Workplace grievances and disputes can remain active for significantly longer periods, as prospective claimants no longer face the pressure of acting promptly.
• Evidentiary challenges: A longer window elevates the risk of fading memories and lost proof. Key witnesses may depart the organisation, routine data retention cycles might purge emails or logs, and remaining staff may struggle to accurately recall events from several months prior.
• Increased DSAR usage: Potential claimants have a broader opportunity to leverage Data Subject Access Requests (DSARs) to gather internal documentation before formally committing to legal proceedings.

HR recommendations

Although this legislative adjustment does not necessitate a complete policy overhaul, it requires human resources teams to refine how they handle prospective litigation. Whenever legal action is realistically anticipated, organisations should establish a formal case file early, safeguard relevant documentation, and record statements from crucial witnesses while details remain vivid. If a key witness is preparing to leave the business, securing their account prior to departure is essential. Finally, corporate document retention schedules should be reviewed to guarantee that relevant materials survive the extended limitation window, alongside any supplementary extensions triggered by Acas Early Conciliation.

Harassment law reforms: Adapting to the new standards

Two critical legal reforms regarding workplace harassment took effect on 30th October 2026, prompting employers to adopt a proactive stance in identifying and mitigating potential risk areas.

From ‘reasonable’ to ‘all reasonable’ steps

Ever since October 2024, organisations have operated under a positive obligation to implement reasonable measures to protect staff from sexual harassment. Following the 30th October update, that threshold was elevated to a mandate requiring businesses to take all reasonable steps. This subtle yet profound linguistic shift raises the compliance bar. Rather than merely evaluating whether existing safeguards are sufficient, employers must actively question whether additional protective measures can be introduced. For human resources teams, this requires re-evaluating sexual harassment risk assessments to ensure that internal vulnerabilities are fully mapped, policies are reinforced by impactful training, reporting channels are clear to all staff, and leadership is fully equipped to respond.

The reintroduction of third-party harassment liability

The second major amendment introduces accountability for misconduct perpetrated by external individuals, spanning customers, clients, suppliers, and visitors. Businesses face statutory liability if an employee suffers harassment from a third party while performing their duties and the employer failed to enforce all reasonable preventative measures. Consequently, assessing external risks is now a vital component of compliance reviews.

Depending on the sector, organisations must weigh specific scenarios, such as hotel guests interacting with staff, retail workers facing abusive shoppers, or professional services teams managing client relationships. Appropriate safeguards can encompass establishing explicit customer conduct guidelines, clear reporting structures, guidance for managers, formal warnings or bans for abusive patrons, and enhanced protections for higher-risk positions.

HR recommendations

Human resources should thoroughly audit existing harassment risk assessments with these updated mandates at the forefront. Businesses must identify every touchpoint where personnel engage with external parties and determine what practical steps can be deployed to minimise those exposures. Simply maintaining a written policy and running periodic training sessions is no longer sufficient on its own. Moving forward, scrutiny will centre on whether an organisation has mapped its true operational risks, including third-party threats, and actively exercised every available preventative measure.

Right to work checks

Historically, right to work checks were treated strictly as part of standard employee onboarding. However, following regulatory shifts that took effect on 1st October 2026, human resources must broaden its scope. Modifications to the illegal working framework have extended these obligations far beyond conventional employment ties. Depending on how engagements are structured, organisations may now be required to verify individuals who were previously excluded from the screening process entirely.

This broadened scope potentially encompasses:

• Workers who hold non-employee status
• Casual staff and zero-hours workers
• Independent contractors
• Agency personnel and workers sourced through complex contractual chains
• Specific gig economy and platform-based service providers.

Crucially, completing a check does not automatically grant worker or employee status for wider employment law purposes, as the right to work regime operates under its own distinct definitions.

Furthermore, not every self-employed person automatically triggers a check. While labels attached to working relationships are not decisive, genuinely independent businesses servicing customers remain outside the scope of the scheme. Official Home Office guidance highlights clear examples of this exemption, such as an independent plumber servicing members of the public or a graphic designer operating through a personal service company.

HR recommendations

Human resources teams should begin by mapping out the entire workforce operating beyond the standard payroll. Organisations need to review consultants, contractors, casual staff, agency workers, and any other individuals personally delivering services to establish which arrangements fall under the updated regime. HR must also clarify accountability for conducting the checks and verify that onboarding protocols strictly prevent individuals from commencing duties before verification is finalised. Although the mechanical process of performing a right to work check remains unchanged, the pool of individuals requiring screening has grown significantly. Consequently, identifying who needs to be vetted has become just as critical as knowing how to perform the checks.