Employment Law Alert UK – November 2026

DEI

EHRC updates its guidance as stronger harassment duties take effect.

On 30 October 2026, the Employment Rights Act 2025 changes to workplace harassment protection came into force. Employers must now take all reasonable steps, to prevent sexual harassment and harassment on any ground by third parties. The EHRC has updated its technical guidance and accompanying eight-step employer guide to reflect the changes. The employer guide emphasises proactive prevention tailored to the workplace, with its recommended steps being illustrative rather than exhaustive. Risk assessments should consider factors including power imbalances, lone or night working, customer-facing duties, alcohol and external events. Practical measures could include keeping centralised, confidential records of formal and informal concerns to identify trends, training on handling third-party harassment from customers, and avoiding isolated working where possible. Importantly, employers should evaluate whether their measures are effective. The guidance provides a useful framework for reviewing risk assessments and action plans. If you would like any assistance with your review, please do reach out to your usual contact.

Reasonable enquiries did not require further dyslexia assessment.

The EAT has upheld a tribunal’s finding that an employer could not reasonably have been expected to know of the Claimant’s dyslexia before October 2019. Although employers must make reasonable enquiries into possible disability, they are not required to pursue every conceivable enquiry. The Claimant, a firefighter with 14 years’ service, had completed a checklist indicating mild dyslexia, but a subsequent assessment recorded a low probability of dyslexia. In the context of his previous assessments and the absence of earlier concerns or indications of substantial day-to-day impact, the tribunal was entitled to find that further investigation was not reasonably required. However, the EAT allowed a separate appeal concerning the Claimant’s claim of discrimination arising from disability. The EAT held that the ET had incorrectly identified the relevant “something arising” as the Claimant’s mental-health conditions, rather than his refusal to provide a statement. That claim was remitted to the same tribunal reconsideration. (Hussain v London Fire Commissioner [2026] EAT 159)

Reasonable adjustments were made at interview, but ET erred in analysis of section 15 claim.

The EAT has upheld the dismissal of a disabled job applicant’s reasonable-adjustments claim but remitted his discrimination arising from disability claim to a new tribunal. The Claimant, who had Asperger’s Syndrome and dyslexia, applied unsuccessfully for a team-manager role. Adjustments were made, including providing questions in advance. The Claimant argued that limited preparation and answer time nevertheless placed him at a substantial disadvantage and sought additional adjustments, including closed questions. The EAT held that the ET has reasonably concluded that closed questions would be a “significant over-correction” in circumstances where the disadvantage suffered by the Claimant was not an inability to give examples of his skills, but rather to do so at speed. The ET was entitled to find that reasonable adjustments had been made, taking account of the relevant guidance and the need to assess the competencies for the role. However, the ET’s reasoning on whether the Claimant had been stressed was unclear and relied impermissibly on assumptions about how a neurotypical person would behave. The EAT concluded that a new tribunal must reconsider whether disability-related stress materially contributed to the decision not to appoint the Claimant and, if so, whether that decision was justified. (Bryce v Coventry City Council [2026] EAT 153)

Employee relations

Material differences defeated a comparator-based race claim.

The EAT has dismissed an appeal against the rejection of race discrimination and unfair dismissal claims brought by the Claimant, a Chinese senior lecturer, who was summarily dismissed following an inappropriate, briefly romantic relationship with a mature student. The Claimant sought to rely on the more lenient treatment of two colleagues. However, the EAT held that it was legitimate for the ET to have concluded that their circumstances were materially different: one colleague’s misconduct was less serious, while the other had apologised, recognised the impact of his conduct and had long service without previous disciplinary action. In those circumstances, the tribunal was not required to undertake an “empty and arid” hypothetical-comparator exercise once the comparisons failed. On unfair dismissal, the EAT rejected the suggestion that Ramphal v Dept for Transport prohibits any HR involvement in a dismissal decision. HR may advise on misconduct concepts and consistency without improperly influencing the outcome. Here, HR had neither altered the report nor exerted undue pressure. There is an important distinction between permissible advice and interference with a decision-maker’s own assessment. (Shing v University of the Arts London [2026] EAT 154)

Family rights

Government confirms enhanced dismissal protections during pregnancy and after family leave.

The Government has published its response to the consultation on enhanced dismissal protections for pregnant women and new mothers, confirming that regulations will introduce a new proportionality test, with implementation intended for October 2027. During the protected period, employers will need to demonstrate that dismissal is a proportionate means of achieving a legitimate business aim, rather than relying on the existing band of reasonable responses test. The protections will have no service qualification and will apply from notification of pregnancy, throughout maternity leave and for six months after leave ends. Comparable protection will apply during adoption leave and for six months afterwards. Employees taking shared parental leave, neonatal care leave or bereaved partner’s paternity leave will be protected during leave, with the additional six-month period applying where at least six continuous weeks of leave are taken. The changes do not amount to an absolute prohibition on dismissal. However, the Government intends a higher threshold, ordinarily requiring employers to consider reasonably viable alternatives, such as temporary adjustments, support or suitable alternative roles. Guidance will explain how employers should approach the new test, including the expectation that employers will consider alternatives to dismissal where appropriate.

Trade unions

The statutory framework for trade union workplace access is now in force.

On 30 October 2026, the statutory framework for trade union workplace access came into force. Qualifying independent unions can now request access through a prescribed process, with the employer and union first seeking to negotiate an agreement. Access may involve physical entry, digital communication with workers without entering the workplace, or both. Alongside this, the Employment Appeal Tribunal (Amendment) (No.2) Rules 2026 have also been made, which, from 3 November 2026, allow appeals to the EAT from determinations, declaration and orders of the CAC. Employers receiving requests should identify which route is being proposed and ensure that the applicable response and negotiation deadlines are met.

Employment status

Government consults on worker status and protections for the self-employed.

The Government has announced a consultation on employment status and protections for the self-employed. It concerns employment rights rather than tax status. Proposals include rebalancing the status test so that personal service, including substitution rights, is less decisive and greater weight is given to how much control the organisation can exert over the way in which the individual performs their work. The Government is also consulting on a presumption of worker status, placing the burden on the engager to demonstrate that an individual is genuinely self-employed, and on the future enforcement role of the Fair Work Agency. Separately, it is seeking views on additional protections for self-employed people, including a right to a written statement and extensions to blacklisting and health-and-safety protections. The consultation closes on 8 January 2027.

Whistleblowing

Government consults on whistleblowing reform, including mandatory employer procedures and financial rewards.

On 12 October 2026, the Government launched a consultation on reforming the whistleblowing framework and introducing an SFO financial reward scheme for individuals reporting economic crime. Of particular relevance to employers is the option of a statutory duty to maintain effective whistleblowing policies and procedures and follow up disclosures. The consultation also seeks views on extending the groups protected and the categories of wrongdoing covered, a specific disclosure route to trade unions, removing the additional requirement for a reasonable belief that disclosures to prescribed persons are “substantially true”, and extending the interim relief application deadline from seven to 14 days. The Government is not proposing to remove the public interest test, and its initial view is against establishing a central whistleblowing body. Separately, the proposed SFO scheme would reward significant, original information leading to successful corporate enforcement action, with payments funded from corporate fines or penalties. Eligibility would be distinct from protection under the Employment Rights Act 1996. The consultation includes questions on reward limits and new offences concerning false reports and intimidation of whistleblowers. The consultation closes on 8 January 2027.

Business protection

Fiduciary status does not itself create a freestanding disclosure duty.

The Court of Appeal has confirmed that a fiduciary does not, simply by virtue of that relationship, owe an independent duty of disclosure (i.e. in relation to their own wrongdoing). The case concerned investment consultancy services and an argument that the adviser owed a positive disclosure obligation separate from the relevant no-conflict and no-profit rules. The Court of Appeal held that the decision in Item Software (UK) Ltd v Fassihi did not create a freestanding duty of disclosure. There is a distinction between disclosure being a necessary consequence of a duty to act within the best interests of a company and an entirely separate disclosure obligation. For employers, the distinction underlines the value of express contractual reporting obligations, rather than assuming that fiduciary status alone requires an employee to disclose wrongdoing. (G.I. Globinvestment Ltd v XY ERS UK Ltd [2026] EWCA Civ 1248)

FCA consults on abolishing certification and streamlining senior manager requirements.

On 22 October 2026, the FCA published its Phase 2 SMCR consultation (CP26/37), alongside the PRA’s separate consultation (CP14/26). The FCA proposes removing the Certification Regime, regulatory reference requirements for previously certified staff and the Directory, while retaining wider competence, suitability and conduct requirements. Under the proposals, mandatory Conduct Rule training would be replaced by notification of the applicable rules and consequences of breach. Reporting thresholds for non-SMF Conduct Rule breaches would increase significantly, meaning only cases resulting in a final written warning or dismissal would be reportable. The consultation closes on 22 January 2027. Final FCA rules are expected in the first half of 2027, with implementation approximately six months later, subject to consultation and the enabling legislation.

Fire and rehire

Government consults on a revised dismissal and re-engagement Code.

On 22 October 2026, the Government launched a consultation on a revised Code of Practice on dismissal and re-engagement to reflect changes to fire and rehire and fire and replace practices under ERA 2025. The draft Code of Practice retains an emphasis on information-sharing, meaningful consultation and seeking agreement, with additional guidance on the financial-difficulties exemption. The consultation seeks views on the draft’s structure, clarity and practical usefulness. The Government intends the statutory protections to commence, and the existing Code to be revoked, in March 2027, with the replacement Code following in summer 2027, subject to parliamentary approval. The consultation closes on 17 December 2026.