Employment Law Alert UK – October 2026

DEI

EAT found that ET should not have rejected Next’s material factor defence – paying warehouse operatives more than retail staff for recruitment and retention was a legitimate aim driven by market forces.

The EAT has found that the ET wrongly categorised Next’s aim as a cost-saving, rather than focussing on the fact that paying a higher market rate to warehouse operatives was necessary for recruitment and retention. It did not matter that Next could have afforded to pay retail staff at the same higher level but chose not to do so. The claim is brought by 3,540 retail sales consultants, whose work had been found to be of equal value to that of warehouse operatives at Next's Yorkshire distribution centres. Retail staff challenged Next's material factor defence under section 69 of the Equality Act 2010, arguing that Next's aim was "costs only". The EAT held this was wrong in law: on the Tribunal's own findings, Next needed to pay the market rate for warehouse work because of recruitment and retention needs specific to that role, not gender, and an aim that was not rendered illegitimate simply because the Respondent could have afforded to pay the Claimants more. This decision is set against the backdrop of the government’s consultation on equal pay and pay discrimination, which acknowledges the challenges with these claims. We are preparing a response to the consultation to highlight the issues we have seen in practice and the potential implications of the government’s proposals. (Next Retail Limited and Next Distribution Limited v Thandi & ors [2026])

Key change to supply chain liability for right to work checks.

From 1 October 2026, the UK illegal working civil penalty regime was significantly extended up the supply chain, so that businesses may be treated as “employing” individuals for right to work purposes even where they have no direct contract with them and those individuals are engaged several tiers down a contracting chain. While the existing position remains unchanged – it is unlawful to employ someone without the right to work in the UK and a compliant right to work check continues to provide a statutory excuse against the current maximum civil penalty of £60,000 per illegal worker – the new regime extends liability to situations involving intermediaries, subcontractors, labour suppliers, online matching platforms and substitution clauses. Liability will be additive across the chain, with the Home Office able to pursue multiple entities in respect of the same illegal worker. Although a statutory excuse will still be available, it will now, from 1 October 2026, depend on specific contractual arrangements being in place before work or services commence, and existing contracts will therefore need to be reviewed and, where necessary, varied to include the required terms.

EAT remits claim and reinstates reasonable adjustments claims against four named individuals.

The EAT has held that the ET was wrong to strike out the Claimant’s reasonable adjustments claims against four individual employees on the basis that such claims can only be brought against the employer. The Claimant, an agency tutor for a person with special needs, had developed disabilities that made carrying out her tutoring in person very difficult. She sought adjustments, including requesting to do online teaching. The Claimant’s reasonable adjustments claim under sections 20–21 EqA 2010 was allowed to proceed against the agency but was struck out against four individual respondents. The EAT held that although the duty is imposed on the employer/principal, a company acts only through its employees, and where an employee’s acts amount to a breach of that duty, both employer and employee can be liable. The Tribunal’s blanket statement that such claims “cannot be brought against individuals” was therefore a legal error, and the EAT ordered that the individual respondents be re joined so that the reasonable adjustments claim could proceed against them, with particulars to be clarified at a future case management hearing. Whilst we consider that naming individual respondents in reasonable adjustments claims has historically been quite rare, this case does fit with the trend of increasing numbers of individual respondents being named in employment disputes generally, and may increase the personal litigation risk perceived by managers dealing with disability and adjustment issues. (Merriman v 1st Staff Ltd & Ors)

New guidance on menopause in the workplace published.

On 7 September 2026, the British Standards Institution (BSI) published a new free international standard, BS ISO 45010 (Menstruation and menopause in the workplace), to help employers worldwide support employees experiencing menstruation and menopause. Building on the 2023 British Standard, the new global standard provides practical guidance on workplace culture, policies, manager training, job and workplace design, impact measurement and reasonable adjustments. Research for BSI suggests that greater confidence in raising menstrual/menopausal health issues could deliver a UK productivity premium of around £300 million a year. BS ISO 45010 is therefore positioned as an evidence based, globally applicable benchmark to normalise discussion, reduce stigma, and advance gender equality at work, ahead of forthcoming UK requirements for Menopause Action Plans from spring 2027.

Tribunal procedure

Tribunals must still make a summary assessment for whistleblowing interim relief and cannot refuse it because of disputed facts.

The EAT has allowed an appeal against the refusal of whistleblowing interim relief, holding that an ET cannot treat the existence of factual disputes as automatically fatal to interim relief but must still make a summary assessment of whether the claimant has a “pretty good chance” of success under section 129(1) ERA 1996. The Claimant, a food and beverage worker in a hotel, alleged he made a protected disclosure on 25 November 2025 about fire doors being left open and security risks, and that his dismissal three days later was principally because of that disclosure. The Respondent denied any disclosure and said the dismissal decision had already been taken on 22 November due to probationary performance concerns. The Tribunal correctly identified that key issues of fact and credibility were in dispute and refused interim relief on that basis alone, without engaging with how the evidence—including a contemporaneous voice recording—looked at a summary level. The EAT found that the Tribunal had erred by treating disputed facts as determinative and by failing to give adequate reasons. The case was remitted for reconsideration. (Duffy v BXTR 3 Ltd t/a House of Gods)

EAT criticises Claimant’s use of AI with reminder of responsibility on all parties to comply with procedural rules.

The EAT has been highly critical of a 300 page ChatGPT generated “skeleton argument” served by the Claimant in proceedings relating to the strike out of the Claimant’s claim. The EAT allowed one ground of appeal to proceed to a full hearing but used the case to give strong guidance on litigants’ obligations when using generative AI and on compliance with the EAT Rules and Practice Direction. Crucially for AI use, the EAT found the Claimant’s skeleton argument entirely unacceptable – it served to “obscure rather than to illuminate” the issues. The EAT emphasised that all litigants (including litigants in person) must: (i) comply with the applicable procedural rules; (ii) personally check AI generated documents for accuracy, relevance and procedural compliance so the court is not misled; and (iii) contain only relevant points, presented in an easily comprehensible manner. Helpfully for Respondents, the EAT was clear that it is not acceptable for AI documents to be submitted by a Claimant with the onus for checking them on the opposing party. (Hancox v Sutherland & Ors)

Employee relations

New day-one right to statutory bereavement leave.

On 22 September 2026, the government published its response to the consultation on leave for bereavement, including pregnancy loss. The government has confirmed that secondary legislation will be implemented to introduce this right, with measures coming into force in April 2027. Alongside this, guidance will be published for employers and employees, detailing their rights and responsibilities. The consultation response confirms that general bereavement leave will be a day-one right and will cover immediate family (spouses, civil/committed partners, parents, adult children, siblings – including step, half, adopted) plus equivalent parental relationships from kinship/foster care arrangements. For pregnancy loss before 24 weeks (including terminations and IVF embryo transfer loss), leave extends to the person who experienced the loss, the other biological parent, partners, intended co-parents, and intended parents in surrogacy arrangements. Employees will be able to take up to two weeks' leave (pro rata), within 56 weeks of the bereavement.

Government publishes response to Consultation on Improving Access to Flexible Working.

On 15 September 2026 the government published its response to the “Make Work Pay” consultation on improving access to flexible working. The response confirms that, from autumn 2027, a statutory “reasonableness” test (employers may only refuse requests where it is reasonable to do so) will be introduced. Secondary legislation will also be published which will set out a process which employers must follow for consulting employees about their request. The new process will require a meeting held “with a view to reaching an agreement”, fair notice of that meeting, constructive discussion of feasibility and any alternatives, and written confirmation of the meeting’s outcome and the final decision. To support these legal changes, ACAS has published a consultation on updates to its statutory Code of Practice on requests for flexible working, which closes on 17 December 2026.

Trade unions

Government announces plan for informing workers of their right to join a trade union.

On 25 September 2026 the Government published its response to the “Make Work Pay” consultation, which confirms how the new statutory duty in the Employment Rights Act 2025 for employers to inform workers of their right to join a trade union will operate from January 2027. Employers will be required to issue a standardised, government drafted written statement, which they may supplement with workplace specific information. The statement will include: a brief overview of trade union functions; a summary of key statutory rights relating to union membership; details and contact information for any recognised trade unions and unions with statutory access agreements; and either a link to, or copy of, the Certification Officer’s list of registered unions. New workers must receive the statement directly, alongside their written particulars, while for existing workers employers may use direct or indirect methods, provided the statement is continuously and reasonably accessible.