Employment Rights Act reforms coming into force
Employment Rights Act 2025: 30 October 2026 – Harassment prevention duties in force
The end of this month sees two important developments in harassment law:
The duty to take reasonable steps to prevent sexual harassment in the workplace becomes a duty to take all reasonable steps
Employers can now be liable where a worker is harassed by a third party in the course of employment and the employer has failed to take reasonable steps to prevent it
The Employment Rights Act empowers the Government to make regulations clarifying what will constitute “all reasonable steps”. The Government has stated that it will consult on these regulations before implementing them in 2027 or 2028.
What constitutes “all reasonable steps” will depend on the employer’s circumstances; there is no definitive checklist.
The EHRC Technical Guidance on Sexual harassment and harassment at work sets out a list of factors that might be taken into account in considering reasonableness:
the size and resources of the employer
the nature of the working environment
the sector the employer operates in
the risks present in that workplace
the nature of any contact with third parties, for example, type of third party, frequency, environment
the likely effect of taking a particular step and whether an alternative step could be more effective
the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve
whether concerns have been raised with an employer that sexual harassment has taken place (it would likely be reasonable for the employer to take steps to investigate and ensure it does not happen again)
compliance with any relevant regulatory standards (for example, standards set by the Financial Conduct Authority or General Medical Council)
whether steps taken have been effective: for example, a further incident of sexual harassment after steps have been taken may indicate that additional or alternative action is needed
Existing case law considers “all reasonable steps” in the context of the statutory defence available to employers facing discrimination claims. Employers may seek to rely on having taken all reasonable steps to prevent discrimination by their employees. The cases set a high bar: simply having a policy and providing training on discrimination and harassment is unlikely to be enough. The case of Campbell v Sheffield Teaching North Hospitals, on which we reported last year, suggested that a tribunal would ask two questions:
What steps were taken?
Were there any other reasonable steps that could have been taken?
If there are any other reasonable steps that could have been taken, then the employer has not taken all reasonable steps.
We recommend that employers who have not yet done so consider at least the following:
assess the risks of sexual harassment in the workplace, document your risk assessment and put steps in place to manage those risks
assess risks of harassment (on any grounds) by third parties in the workplace, document your risk assessment and put steps in place to manage those risks
Typical steps would include:
clear policies
engaging and regular training programmes
embedding a culture of bystander intervention and role modelling
effective complaint mechanisms
For a detailed discussion on this topic, you can watch our recent 30-minute webinar.
Employment Rights Act 2025: 30 October 2026 – further trade union reforms in force (and one delayed)
One of the key reforms of the Employment Rights Act 2025 comes into force on 30 October: the statutory right of trade unions to seek access to the workplace. This is accompanied by a Code of Practice.
Under the new law, unions can seek an access agreement by submitting an access request to an employer. The employer may agree or issue a response notice, triggering a negotiation period. If agreement is not reached, the matter can be referred to the Central Arbitration Committee (CAC). Access covers both physical entry and communication with workers. Its purposes may include:
to meet, support, represent, recruit or organise workers
to facilitate collective bargaining
Other reforms taking effect on 30 October 2026 are:
Employees are protected from detriments for taking part in industrial action: a reform closing a gap in the previous legislation
A new right to time off for union equality representatives: whilst many unions have equality representatives, until now they have not benefited from the same statutory right to time off to carry out their duties as other union representatives
One reform has been delayed from October 2026 to January 2027 – this is the right of every worker to receive a statement from their employer of their right to join a trade union. After consultation, the Government has confirmed that the obligation on employers will be to deliver to new starters, at the same time as their section 1 ERA statement of Terms and Conditions, a Form setting out their right to join a trade union. This will be a standard form designed by the Government in conjunction with ACAS, and employers will then have to add to the Form details of their own recognised unions (if they have any). As well as being issued to new starters, employees will need to be reminded of their right to join a trade union annually by 5 April.
Employment Rights Act 2025: Fire and rehire, implementation delay and further details
The Employment Rights Act will restrict employers’ use of dismissal and re-engagement to change employees’ terms and conditions.
It was originally timetabled to come into force on 1 January 2027, but that has now been pushed back to March 2027. On 22 October 2026, the Government published its response to its consultation on this reform and in particular the definition of a restricted variation.
The way the new law will work is that if an employer terminates and offers re-engagement in order to implement a “restricted variation”, any such termination will be an automatic unfair dismissal. The definition of restricted variation is therefore very important, especially since from 1 January 2027, unfair dismissal rights will apply to more people (employees with more than 6 months service) and there will be no limit on the compensatory award.
The outcome of the consultation is that “restricted variations” will include variations to:
Shift-pattern changes involving:
changes from day to night working
changes from weekday to weekend working
Changes to expenses and benefits involving:
certain types of travel expenses (including mileage)
accommodation expenses
accommodation as a benefit in kind
The consultation confirms that changes to share schemes will not be “restricted variations”.
The consultation response also states that changes will not be restricted by the new law where:
an employment contract allows the changes to be made, for example through a flexibility clause
expenses and benefits in kind are not included in a contract but are granted by an employer separately, e.g. through a separate expenses policy. Providing these documents do not form part of the employment contract, employers could make changes to these expenses and benefits policies without it being a restricted variation
Many employers are reviewing their employment contracts and policies, particularly for new starters, to ensure that they can maintain a degree of flexibility once the new law comes into effect. Rigid contracts which provide contractual rights to certain benefits will be almost impossible to change in the future without employee agreement.
Employment Rights Act 2025: Dismissal protection for employees who are pregnant or take maternity leave
The Government had announced plans to strengthen dismissal protection during pregnancy and during and immediately after maternity leave, but the practical detail had remained unclear.
The Government has this month published its response to consultation on the topic and set out its proposals.
The key proposals are:
Intended implementation date is October 2027
This enhanced protection will be a day one right, so will apply irrespective of length of service
The Government intends to introduce similar enhanced protection for all other types of family leave
The protection applies for the protected period, starting with notification to the employer of pregnancy and ending 6 months after maternity leave ends
If an employee is dismissed during the protected period:
the test for unfair dismissal will not be the usual test as to whether there was fair reason to dismiss and whether dismissal was “within the range of reasonable responses”
the test will instead be whether there was a fair reason to dismiss and whether dismissal was “a proportionate means of achieving a legitimate aim”
The language of proportionality is taken directly from discrimination legislation. The impact will be “that Tribunals will ordinarily require an employer to consider whether there are no reasonably viable, less discriminatory alternatives to dismissal. This would typically include consideration of how the employee could be supported to remain in work, for example through workplace adjustments, temporary measures, or the identification of suitable alternative roles, before dismissal is pursued”
This new law will not replace the current obligation on employers to offer a suitable available vacancy to those at risk of redundancy who are pregnant or within 18 months of giving birth. It will, however, mean that employers dismissing on any ground (redundancy, conduct, capability, SOSR) will need to ensure that they can justify their dismissal as a proportionate means of achieving a legitimate aim.
One issue raised during consultation was the risk that this new protection would have an unintended consequence of making employers less likely to employ women because of the greater protection against dismissal. In its response to the consultation, the Government says that “it recognises the risks of unintended consequences and is committed to ensuring that the approach taken is proportionate, workable and mitigates these risks as far as possible”.
Employment Rights Act 2025: Unpaid bereavement leave
On 22 September 2026, the Government published its response to the consultation on this issue and confirmed that its proposed reforms, due in April 2027, will be as follows:
Eligibility
bereavement leave will cover the loss of immediate family members, including biological, adoptive, step- and half-relations. These include spouses, civil partners, partners in a committed long-term relationship (whether cohabiting or not), parents, adult children and siblings. Equivalent parental relationships for employees raised in kinship or foster care arrangements will also be covered
bereavement leave for pregnancy loss will apply to:
the person who was pregnant
a spouse, civil partner, other parent or partner in a committed long-term relationship with the person who experienced the pregnancy loss
an intended co-parent
intended parents in a surrogacy arrangement
All types of pregnancy loss will be covered, including:
all types of miscarriage before 24 weeks including molar pregnancies, ectopic pregnancies and chemical pregnancies (non-exhaustive)
all terminations
IVF embryo transfer loss, meaning the unsuccessful outcome of transferring a fertilised embryo into the uterus during IVF treatment. This does not include IVF embryo loss pre-transfer
When and how leave is taken:
The government will legislate to provide:
up to two weeks of unpaid leave, prorated to the employee’s usual working pattern
for all types of bereavement including the death of a loved one and pregnancy loss
Bereavement leave will be able to be taken discontinuously in units of one day, within 56 weeks of the death
Notice and evidence requirements
Notice should be provided:
Before the employee starts work on the day they intend to take leave, or as soon as is reasonably possible thereafter for the first eight weeks of bereavement
One week before the requested date of leave, for leave taken beyond eight weeks of the bereavement.
There will be no formal process for providing evidence of bereavement: The Government “acknowledges that the period directly after a bereavement can be incredibly distressing, and that requiring employees follow a formal procedure to notify their employer they’ve had a bereavement and wish to take leave could inhibit or prevent people from being able to take this leave when they need it most”
Further guidance will follow. Employers should review their bereavement policies and prepare to comply with the new rules when they take effect in April 2027.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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