HR Insights

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September Bulletin

Monthly Bulletin Archive

6th October 2025

September Bulletin

Employment Law Roadmap for implementing the Employment Rights Bill: 2025-2027 

The Government has published its employment law roadmap, setting out how and when the wide-ranging reforms in the Employment Rights Bill will be introduced. 

While the original timeline was ambitious, the new roadmap signals a slower, more phased rollout – particularly when it comes to major reforms like zero-hour contracts and day-one unfair dismissal rights, which now aren’t expected until 2027. 

Consultations Timeline 

Some proposed changes will be preceded by a period of statutory consultation. We now have a clearer timeline for this.  

Expect consultations in Summer/Autumn 2025 on: 

  • Day-one unfair dismissal 
  • Single enforcement body (SSSNB) 
  • Social care pay 
  • Trade Union reforms 
  • Fire-and-rehire ban 
  • Umbrella company rules 
  • Bereavement leave 
  • Pregnancy protections 
  • Zero-hour contract regulation 

These will be followed by further consultations over Winter 2025/early 2026 on: 

  • Tipping laws 
  • Flexible working rights 
  • Collective redundancy consultation processes 
  • Blacklisting protections 

Key Implementation Milestones 

As soon as the Bill receives Royal Assent: 

  • Repeal of Minimum Service Levels Act 2023 and parts of Trade Union Act 2016 
  • New protection from dismissal for those involved in industrial action 

April 2026: 

  • Doubling the protective award for collective redundancy breaches 
  • Day-one rights to paternity leave and unpaid parental leave 
  • Strengthened whistleblowing protections 
  • Introduction of the Fair Work Agency 
  • Statutory Sick Pay reform (no lower earnings limit or waiting days) 
  • Easier Trade Union recognition and online ballots 

October 2026: 

  • Fire-and-rehire ban 
  • Launch of a Fair Pay Agreement Negotiating Body for adult social care 
  • Stronger rules on tips 
  • Employer duty to take ‘all reasonable steps’ to prevent sexual harassment 
  • Expanded trade union rights  
  • Stricter Employment Tribunal limits and protections for those taking industrial action 

2027: 

  • Mandatory gender pay gap and menopause action plans (voluntary from April 2026) 
  • Strengthened protections for pregnant workers 
  • Extended flexible working rights 
  • New right to bereavement leave 
  • Restrictions on abusive zero-hour practices 
  • Regulation of umbrella companies 
  • Day-one unfair dismissal rights 

What HR should do now 

With this clearer and more realistic timescale, HR teams can start preparing: 

  • Update handbooks and policies – especially for family leave, harassment, and dismissal rights 
  • Consider responding to upcoming consultations – consider whether you wish to respond to the upcoming consultations to help shape final regulations 
  • Train managers – ensure line managers understand the upcoming duties and rights 
  • Audit payroll and benefits – to reflect upcoming SSP and leave changes 

Now’s the time to strategically plan, using these timelines to make sure your internal systems are ready. With over two years of phased implementation, being proactive will pay off. 

Read the implementation document in full here.

 

Working Time Rules for Young Workers

Whether you’re taking on a weekend retail assistant or onboarding an apprentice fresh out of school, it’s important for employers to understand the specific legal protections for young workers. 

Young workers (those under 18) are subject to stricter working time limits than adult employees, with additional safeguards around breaks and rest periods. Here’s a breakdown of what you need to know when employing someone under 18. 

Young Workers Aged 16–17 

If an employee is aged 16 or 17, the following rules apply: 

  • Maximum working hours: 8 hours a day, 40 hours a week 
  • Breaks: At least 30 minutes if working more than 4.5 hours 
  • Daily rest: 12 hours’ rest between shifts 
  • Weekly rest: 48 consecutive hours’ rest each week 

These limits apply regardless of the type of contract and cannot be averaged out over multiple weeks. 

Children Under 16 

If the employee is under school leaving age (usually 16), the rules are even tighter: 

  • Maximum hours: 
  • Under 15: 5 hours per day / 25 hours per week 
  • 15 and over: 8 hours per day / 35 hours per week 
  • No more than 2 hours on a Sunday 
  • Permitted hours: Work must be between 7am and 7pm 
  • Breaks: At least 1 hour if working more than 4 hours 

Note: Children under 16 also require an employment permit from their local authority and cannot be employed in certain types of work. 

Top Tips for HR 

  • Monitor hours carefully – don’t assume part-time means compliant 
  • Use clear rotas and records to track working time 
  • Train line managers on the specific rules for young employees 
  • Review contracts and policies to ensure they reflect these legal limits 

 

Constructive criticism is not harassment

It is the nature of the employment relationship that employers are sometimes called upon to have difficult conversations with their employees. These conversations might be about career progression, conduct or business plans. Where an employee is struggling in their role, then their employer may need to make critical comments about their performance. It’s important, for the employer’s integrity, that these conversations are able to take place.  

However, employers need to tread carefully and act respectfully, as there can be a fine line between criticism and harassment. The case of Mr T Shevlin v John Wiley and Sons Limited provides a welcome reminder that providing critical feedback about an employee’s work is not, in itself, harassment. 

In this case, Mr Shevlin, who had ADHD, claimed disability discrimination and harassment. In particular, he alleged that comments made by his employer about the quality of his work – described as “messy” and including “a lot of typos” – were discriminatory and amounted to harassment related to his disability (ADHD). However, the tribunal found that the employer’s actions were reasonable and that the feedback given was part of normal performance management.  

Employers are entitled to address performance issues. Where an employee may be suffering from a disability then this must be handled sensitively, and the employer will need to consider reasonable adjustments to working practices to alleviate any disadvantage faced by the disabled employee at work. They must also ensure that the language used is sensitive and appropriate to avoid any claim that the feedback forms ‘unwanted conduct’ and is harassing in some way. However, as this case shows, the existence of a disability does not mean that poor performance cannot be tackled at all.

 

Covert surveillance: a last resort

Covert surveillance in an employment context is an uncomfortable concept. The employment relationship is underpinned, on both sides, by a duty of trust and confidence. If one party is, effectively, spying on the other, it undermines this key term. It should be used sparingly. 

There are several legal risks if you covertly monitor an employee without a good reason or the surveillance is unnecessarily intrusive: 

  • Any dismissal based on the evidence gathered may be unfair.  
  • The employee may resign and claim constructive unfair dismissal because you’ve breached the implied duty of trust and confidence.  
  • You could face a disability discrimination claim if you unreasonably carry out surveillance on a suspected malingerer. 
  • The Information Commissioner’s Office (ICO) may prosecute you for breaching your data protection obligations.   
  • You may breach the employee’s right to privacy under the Human Rights Act 1998. 

It can, however, sometimes be justified. In City and County of Swansea v Gayle, Mr Gayle was twice spotted playing squash at a sports centre when he should have been at work. The council hired a private investigator who covertly recorded him visiting the sports centre five more times during working hours.  

The Employment Appeal Tribunal held that Mr Gayle’s dismissal was fair, and the covert surveillance was proportionate and reasonable. Mr Gayle could not reasonably have expected privacy in this situation because:  

  • He was filmed in a public space. 
  • He was filmed during working hours, and an employer is entitled to know where an employee is when they’re meant to be working.  
  • He was defrauding the council by claiming pay for time when he hadn’t been working.  

Where an employer suspects that an employee who is off work sick may be malingering, it can be tempting to try and ‘catch them out’ by recording them carrying out activities which seem to be at odds with their stated medical capabilities. However, this is to be discouraged, and covert surveillance should only be used as a last resort in these circumstances. It is much better to seek medical input from occupational health or the employee’s doctor about their difficulties rather than covertly monitoring them. A person’s abilities are not always as they seem, and a recording does not necessarily tell the full story. The fact that a person is up and about does not mean that they are capable of working.  

This was illustrated in the recent case of Kerita v BMW (UK) Manufacturing Ltd, where BMW got a G4S surveillance operative to covertly film an employee who it suspected was exaggerating a health condition. The employee had a history of back pain, which was exacerbated by his work building cars. An occupational health assessment concluded that he was probably disabled. After he want off sick, BMW hired a private investigator to carry out surveillance. The investigator filmed him from behind walking about three miles over 90 minutes and bending down at one point. BMW accused him of dishonesty and dismissed him for gross misconduct. 

Mr Kerita successfully claimed unfair dismissal, direct disability discrimination, failure to make reasonable adjustments and discrimination arising from a disability. The employment tribunal noted that: 

  • Mr Kerita had never told BMW that he was unable to walk – only that walking for some time caused pain, sickness and dizziness.  
  • The surveillance footage didn’t show his face, so it didn’t prove he wasn’t in pain.   
  • BMW managers were too quick to conclude that an employee with a health condition was being dishonest about their symptoms. 

 

Care worker wins race discrimination case after colleagues spoke Polish in a meeting 

In Kellington-Crawford v Newlands Care Angus Ltd, an English care worker succeeded in claims of race discrimination and harassment after feeling excluded in a disciplinary meeting where her three Polish managers spoke to each other in Polish. The Claimant did not speak the language and felt intimidated and isolated. 

She had been called to the meeting over alleged inappropriate messages. Despite the absence of hostile intent, the tribunal found that the managers’ conduct had a harassing effect – violating her dignity and creating an intimidating environment. 

The tribunal also upheld her claim for direct race discrimination. It found that the claimant, as the only non-Polish speaker, had been treated less favourably compared to someone who could understand the language. Had a Polish-speaking comparator attended the same meeting, they would have been able to follow and respond to the discussion — and potentially would not have been spoken about in the same way. 

The claimant was awarded £2,500 for injury to feelings. 

Lessons for HR 

  • Set expectations around language use – Ensure that meetings, particularly formal ones, are conducted in the common workplace language if participants do not all share the same first language. 
  • Focus on inclusion – Using a language not understood by everyone present can create exclusion, undermine trust, and in some cases, amount to discrimination or harassment. 
  • Train managers – Raise awareness of inclusive communication practices and the risks of inadvertent exclusion. 

A blanket ban on foreign languages is not the answer, but clear guidance and thoughtful communication can help avoid similar risks. 

 

Court of Appeal confirms Race Discrimination finding against Council 

Understanding Direct Discrimination

Under the Equality Act 2010, direct discrimination happens when someone is treated less favourably because of a protected characteristic, such as race. To succeed in a direct discrimination claim, an employee must show: 

  • Facts from which discrimination could be inferred. 
  • A suitable comparator – someone in similar circumstances who was treated more favourably. 
  • If this is established, the burden of proof shifts to the employer to show that the treatment was not discriminatory. 

Leicester City Council v Parmar

Mrs Parmar, a British employee of Indian origin, worked as a senior social worker for the Council. She was investigated for misconduct and temporarily removed from her role. She claimed this was direct race discrimination. 

She highlighted that: 

  • The only other senior staff members investigated in this way were also of Asian origin. 
  • No white colleagues of similar seniority had been treated in the same way. 
  • The same manager had only commissioned disciplinary investigations against Asian staff. 

Both the Employment Tribunal and the Employment Appeal Tribunal agreed that there was enough evidence to suggest possible discrimination, shifting the burden to the Council to justify its actions. The Council failed to do so. The Council appealed this finding to the Court of Appeal. 

What the Court of Appeal said

The appeal was dismissed. Key points included: 

  • The comparators used were appropriate, even though their situations weren’t identical. 
  • The tribunal didn’t believe the Council’s explanation (such as reliance on HR advice or witness interviews) was credible – and if the explanation doesn’t hold up, it can’t disprove discrimination. 

Lessons for HR 

  • Consistency is key. Always follow the same process when handling disciplinary matters to reduce the risk of discriminatory treatment.
  • Flex with care. If a different approach is needed in a specific case, keep a clear record of why. This helps show that decisions were based on legitimate, non-discriminatory reasons.
  • Document decisions. Ensure any deviation from normal process is supported by written justification to protect against future claims. 

This case is a reminder that consistency, transparency and well documented decision making are essential tools for HR when navigating employee relations fairly and lawfully. 

 

Harassment can occur even where the purpose of the conduct was not to harass

It is crucially important that employers are aware of the ‘reach’ of rules on harassment in the UK. A recent Employment Appeal Tribunal decision serves as a reminder that conduct can constitute harassment under Equality Act 2010 even where the perpetrators did not intend to harass.  

The legal test for harassment requires the conduct to ‘relate to’ a protected characteristic. It also covers cases where the purpose of the conduct was to harass and where, regardless of intent, it had a harassing effect. When considering whether conduct had a harassing effect, tribunals must take account of the following: 

  • The employee’s perception; 
  • The other circumstances of the case; and 
  • Whether it is reasonable for the conduct to have that effect. 

In Logo v Payone and others, Mr Logo brought several claims of racial harassment. They included: 

  • A colleague attended a work party wearing blackface makeup. 
  • A colleague told Mr Logo they’d heard a rude joke involving a black man and an animal. 
  • That a video advert for “Pure Blonde” beer – depicting a world of white, blonde people – was shared on a team WhatsApp group where he was the only black member. 

The tribunal found that the first two incidents had occurred and amounted to racial harassment because of their ‘effect’ on Mr Logo. It held that the sharing of an advert for “Pure Blonde” beer on WhatsApp did not ‘relate’ to the protected characteristic of race and that it was not reasonable, in any event, for the conduct to have had a harassing effect on Mr Logo.  

The Employment Appeal Tribunal disagreed, holding that the tribunal had been wrong to conclude that the circulation of a video “that depicts a utopia of white, blond people who are ‘pure’” did not ‘relate to’ race. When looking at the ‘effect’ of the video the tribunal had also failed to consider: 

  • The perception of Mr Logo – focusing instead on the fact that the person posting it thought it was funny. 
  • The circumstances of the case – including that the video was posted without explanation in a group of which Mr Logo was the only black member.  

Harassment training should clearly explain to employees that something which they regard as harmless ‘banter’ can still be unlawful harassment if it has a harassing effect on a colleague. Clear parameters of appropriate workplace conduct should be set, and employees should be reminded to ‘think before they post’ in any interactions on social media. 

 

National Minimum Wage and night work 

Night work is common across sectors like healthcare, security, hospitality, and logistics – but it’s also an area where employers can inadvertently fall foul of National Minimum Wage (NMW) rules. Here’s a quick guide for HR professionals and managers to help you stay compliant. 

What’s the rule? 

All night workers – regardless of the time they work – must be paid at least the National Minimum Wage. This applies across the board, with rates varying by age and whether the worker is an apprentice. However, there’s no legal requirement to pay more simply because the work happens at night – unless you’ve agreed to do so in a contract or policy. 

What counts as paid working time? 

For night workers, NMW must be paid for: 

  • Time spent actively working 
  • Time spent training during night hours 
  • Additional duties like cleaning or stock checks 

Where things get trickier is when workers sleep on site. 

Sleep-in shifts 

The key test is whether the worker is ‘awake for the purposes of working’. For example: 

  • Sleep-in carers with proper sleeping facilities are only entitled to NMW for the time they are awake to carry out duties. 
  • Workers expected to be active for most of the night – even with some rest breaks – are typically entitled to NMW for the full shift. 

This was confirmed by the Supreme Court in Royal Mencap Society v Tomlinson-Blake. 

Top tips for employers 

  • Audit for NMW compliance – Ensure deductions (e.g. uniforms, accommodation) don’t reduce pay below NMW. 
  • Clarify pay in contracts – Clearly set out night work rates and what hours are paid. 
  • Include in holiday pay – Regular night shift premiums should be factored into holiday pay calculations. 
  • Itemise payslips – Show night work payments and any enhancements separately for transparency. 

 

5 things HR need to know about probationary periods 

Probationary periods are a trial period at the start of the employment relationship designed to provide the employer with better insight into whether or not a successful applicant is suitable, both for the job role and the business. Here are 5 things HR should know about probationary periods: 

  1. There is no legal requirement to include a probationary period in an employee’s contract of employment. They are not mentioned in any employment legislation.  
  2. Probationary periods can be used as an effective tool to monitor performance and conduct in the early stages of the employment relationship. They can focus the employer’s attention, especially if the contractual clause prompts an ‘end of probationary review’ with a requirement that this is ‘passed’ before ongoing employment is confirmed. 
  3. Probationary period clauses in the contract of employment commonly include shorter notice periods to allow for a quick exit should the employee turn out to be a bad fit for any reason. They also often disapply the business’s usual disciplinary and performance management processes, ensuring that the employer has the ability to take a more broad-brush decision, unfettered by formal process, if necessary. 
  4. Employees do not currently obtain ordinary unfair dismissal rights until they have worked for two years. This means that probationary clauses can generally be followed to dismiss in the early stages of employment with limited risk (although see point 5 below on discrimination and whistleblowing). However, employers should be mindful that all this might change over the next few years. The Employment Rights Bill proposes to introduce a Day-one right to claim unfair dismissal, meaning that traditional probationary clauses (bypassing formal process) may no longer be able to be used. The Bill currently proposes to introduce an ‘initial period of employment’ where a limited formal process may be required where a dismissal is for conduct or performance reasons, but this will be a statutory construct – sitting separately from contractual probationary period clauses – which may need to be re-thought. 
  5. Even if a current contract of employment contains a probationary period clause, the employer should be mindful of any potential discrimination or whistleblowing risk if it decides to use the clause to dismiss during the early stages of the employment relationship. This is because discrimination and whistleblowing protection apply from day one of the employment relationship. A probationary period clause does not bypass this.

 

And finally, a case in which the dismissed employees should be applauded for a great effort in the face of a seemingly clear-cut fair dismissal was recently considered by the Employment Tribunal. In Hedger & Dimitrova v John Lewis Plc two former Waitrose employees were dismissed for taking an unauthorised holiday to Bulgaria. When the couple returned to work after a two-month unauthorised absence, managers reportedly found their extended absence suspicious because of their “tanned appearance”. The Claimants were dismissed for gross misconduct for the unauthorised absence. They sought to claim that their dismissals were discriminatory on grounds of Ms Dimitrova’s Bulgarian nationality and that they were racially harassed because of having tanned skin following their holiday.  

The tribunal found that the dismissal was not because of Ms Dimitrova’s nationality but because of their lengthy unauthorised absence. The harassment claim related to tanned skin also had no connection to Ms Dimitrova’s Bulgarian nationality/national origins and was misconceived.

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.

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