Welcome to your Quarterly Employment Law Bulletin from Roots HR.
This quarter we update you on…
Employment Rights Bill: What’s currently happening?
The House of Commons rejected opposition amendments to the Employments Right Bill from the Lords In September.
The Bill is now back in the Lords, waiting for them to agree (or disagree) with those rejections. It’s likely that the Lords will accept the Commons’ decision on its amendments, and approve the Bill, on 28 October 2025. If so, we anticipate Royal Assent may be given in early November.
Watch our September 2025 webinar for more information on the Bill.
Changes to the proposed ‘ban’ on Fire and Rehire under the Employment Rights Bill
The Employment Rights Bill makes major strides towards ending ‘fire and rehire’. That’s the strategy where an employer, unable to secure agreement to new contract terms, dismisses staff and then offers to rehire them on the revised terms (or hires new people on those terms instead). [Read more]
Until now, that approach has been lawful if there’s a genuine business reason and the process is fair (though it could still trigger unfair dismissal claims if mishandled). Some employers have used it as a strong-arm tactic to drive through changes to pay, hours or other conditions.
The Bill’s initial proposals made using fire and rehire almost impossible – it could only be used when the business was in significant financial distress. Responding to business concerns, Government amendments, published in the summer, soften that position. The new position on fire and rehire can be summarised as follows:
1. Dismissal for a restricted variation – automatically unfair unless justified by serious financial difficulties
Dismissal for fire and rehire will be automatically unfair (unless justified – see below) where the proposed variation in the contract is a ‘restricted variation’. A restricted variation is:
- a reduction in pay;
- a variation to pensions;
- a variation in hours of work;
- a variation in timing or duration of shifts (which meet conditions specified by the Secretary of State);
- a reduction in entitlement to time off;
- the addition of a variations clause; or
- any other variation specified in regulations.
Dismissing someone for refusing to accept a restricted variation would count as automatically unfair – unless the employer can meet a very high threshold to justify it.
What is that threshold?
The employer would need to show:
- it had evidence of serious financial difficulties affecting (or likely to affect) business viability;
- the proposed contract changes were intended to address or mitigate those financial problems; and
- it had no alternative – the changes were unavoidable to keep the business afloat.
All three conditions must be met. And even then, a tribunal will still closely examine whether the process was fair — including whether the employer genuinely consulted with staff or any recognised union, and whether alternatives to dismissal (or any incentives to accept the changes) were seriously explored.
Put simply: unless the business is in very serious financial trouble and has no choice but to change staff contracts to survive, dismissal and rehire to make a restricted variation will be extremely difficult. If you do, you’ll face automatic unfair dismissal claims. The aim is to stamp out what the government calls “unscrupulous fire and rehire tactics” – using the threat of job loss to strong-arm people into worse terms.
2. Dismissal for an unrestricted variation – potentially fair but subject to new statutory fairness ‘checklist’
There are some variations that an employer might want to make which are not restricted variations. Changing location and amending an employee’s contractual duties are two good examples. If an employer wants to fire and rehire to make an unrestricted variation, then the dismissal would be potentially fair. Usually, the issue of fairness would then be left to the reasonableness test in s98(4) Employment Rights Act 1996. However, the Bill proposes a gloss on this by giving tribunals a list of matters it must consider when deciding the fairness of a dismissal for refusing to agree to a variation that is not a restricted variation. The factors comprise:
- the reason for the variation
- any consultation carried out by the employer about varying the employee’s contract of employment
- anything offered in return for agreeing to the variation any additional matters specified in regulations
3. Dismissal of employees to replace with people who are not employees – automatically unfair unless justified by serious financial difficulties
If an employer wants to dismiss an employee for the principal reason of replacing them with a person who is not an employee (as happened, for example, with P&O who replaced employees with agency workers), then such a dismissal will be automatically unfair if the replacement is carrying out substantially the same activities as the employee, and the statutory defence of being in serious financial difficulties does not apply.
Where restructuring meets redundancy: Understanding the legal risks
The words “redundancy” and “restructuring” carry very different connotations. Redundancy often implies cutbacks and job loss. Restructuring, on the other hand, sounds strategic and forward-looking.
It’s no surprise then that employers often refer to redundancies as “restructuring”. But what are the risks?
Redundancy or “SOSR”?
Redundancy is one of the five potentially fair reasons for dismissal where there’s a reduced need for employees to do a particular kind of work.
In contrast, “some other substantial reason” (SOSR) might apply where a business restructure requires changes to terms and conditions. If employees refuse the new terms, they may be dismissed and offered re-engagement.
Why the label matters
While the consultation process may look similar for both (engaging employees, considering alternatives, fairly selecting), the key difference lies in termination payments.
A redundancy dismissal typically entitles the employee to a statutory redundancy payment, whereas SOSR does not – just notice pay.
But don’t assume “restructure” means SOSR. In Packman v Fauchon, an employee’s hours were reduced due to a drop in work – even though the headcount didn’t change, the dismissal was still found to be a redundancy in law.
Top tips:
- Even if no roles are lost, a reduced need for work may still be redundancy.
- Mislabelling a redundancy as a restructure can risk unpaid redundancy claims.
- Collective consultation rules apply for both SOSR and redundancy if 20+ dismissals are proposed within 90 days.
- Always align your documentation and rationale with the actual legal basis for dismissal.
If you are planning a restructure, whether you anticipate redundancies or not, please do contact us for advice and guidance. Also check out our free resources including our FREE factsheet on Minimum Redundancy Processes.
Non-disclosure agreements (NDAs): new restrictions in force from 1st October 2025
Non-disclosure agreements (NDAs) are legal contracts or provisions of legal contracts that place confidentiality requirements on another in respect of certain information, usually for something of value or payment. They are sometimes referred to as ‘gagging clauses’. In an employment context, they are often used to maintain the confidentiality of settlement terms (or the events leading up to such terms being agreed). The use of NDAs has come under increasing scrutiny in recent years, with the #MeToo movement and high-profile examples (such as Mohamed Al Fayed and Harrods) of them being used to cover-up misconduct. With their use being restricted in new areas with effect from 1st October 2025, we summarise the current legal position regarding NDAs, and where it is headed.
The current position
Currently NDAs will be void if they seek to:
- prevent an individual from reporting a crime to the police.
- prevent a worker from making certain protected disclosures under whistleblowing laws.
- prevent a member of staff, student or visiting speaker in a higher-education setting from disclosing sexual abuse, sexual harassment or sexual misconduct, or any other bullying or harassment.
Changes from 1st October 2025
On 1st October 2025, new restrictions on the use of confidentiality provisions under the Victims and Prisoners Act 2024 came into force. These make clear in statute that non-disclosure agreements cannot be enforced insofar as they seek to prevent victims from reporting crime to the police. The changes also extend these protections to certain other disclosures, including those necessary for victims to access confidential advice and support needed to cope and recover from the impact of crime.
Disclosures to any of these extended categories of person will not be a ‘permitted disclosure’ if the primary purpose of the disclosure is for making the information public.
Employers will need to make sure that their standard settlement wording is amended to carve out these additional disclosures.
If you are considering an NDA, we recommend that you take professional advice – your first step would be to contact us for advice.
Working time and Night Work
Some employers within the social sector will have a workforce that works nights; the Working Time Regulations 1998 provide the legal framework for working hours and rest breaks. They contain special rules for night workers. Here’s what you need to know.
Who is a Night Worker?
Under the Working Time Regulations 1998, a night worker is someone who:
- works at least 3 hours during ‘night-time’ as a normal course (typically one in three shifts); and
- works during the period between 11pm and 6am, unless an alternative 7-hour window (e.g. 10pm–5am) is agreed.
What are the limits?
Employers must ensure adult night workers do not work more than 8 hours in a 24-hour period, averaged over 17 weeks. This includes overtime. If the work involves special hazards or strain, the 8-hour cap applies per shift with no averaging.
Workers can’t opt out of night work limits individually, but employers may vary them through a collective or workforce agreement.
These limits apply alongside usual working time protections, such as rest breaks and weekly working hour limits.
Exceptions to the rules
Some roles are exempt from night work limits, including:
- Emergency services, police, armed forces
- Domestic workers in private homes
- Roles with unmeasured working time (e.g. executives)
- Work requiring 24/7 staffing or urgent cover (e.g. agriculture, transport, hospitality)
Young workers
Special restrictions apply to workers aged 15–18:
- They must not work between 10pm and 6am (or 11pm and 7am, if their contract allows work after 10pm).
- Limited exceptions apply, such as for supervised night work in hospitals or hospitality – only where essential and not harmful to education or wellbeing.
- Employers must complete a risk assessment before assigning young workers to night duties.
Takeaways:
Employers should:
- regularly review night shift patterns for compliance.
- conduct risk assessments, especially for hazardous roles and young workers.
- monitor total working hours across multiple roles.
A proactive and compliant approach protects both employees and the organisation- day or night.
Lone working in the UK: Legal duties and key risks
Many UK staff work alone, whether by design or default. What are the rules around lone working? And what do social sector employers need to be aware of?
What is Lone working?
The Health and Safety Executive (HSE) defines lone workers as those who work without close or direct supervision. This can include care staff, drivers, home and hybrid workers when working remotely.
What does the law say?
Lone working isn’t banned, but it must be properly risk assessed under the Management of Health and Safety at Work Regulations 1999.
A written lone working risk assessment is required to ensure that lone workers are not exposed to greater risks. If risks can’t be mitigated, lone working should not be allowed.
Common risks for lone workers
- Health & Safety: Accidents or emergencies may be more serious if help is delayed.
- Mental health: Isolation can increase stress and anxiety, particularly for homeworkers.
- Violence & harassment: Staff dealing with the public are more vulnerable when alone, including to third-party harassment—now a priority under new legal duties.
- Lack of oversight: Without supervision, safety protocols may lapse, and performance may be harder to monitor.
Practical Tips
- Carry out lone working risk assessments tailored to the role and individual.
- Have a clear lone working policy, covering safe tasks, emergency procedures, and check-in systems.
- Train both lone workers and their managers on safety measures, reporting, and wellbeing.
- Use tech solutions: regular check-ins, apps, or lone worker devices with panic alarms or GPS tracking.
- Prioritise wellbeing: Encourage regular contact and access to mental health support.
Anonymity in the workplace
Anonymity can encourage openness and honesty in the workplace – especially when it comes to whistleblowing, misconduct, or harassment. But while it has its benefits, anonymous complaints present challenges that must be handled carefully.
Anonymity vs. Confidentiality
Anonymity means the complainant’s identity is completely unknown, unlike confidentiality, where it is known but not widely shared. Anonymous reporting tools can help surface serious issues that might otherwise go unreported, particularly where employees fear retaliation.
Risks to investigations
While anonymity may encourage disclosure, it can hinder effective investigation. Without knowing who made the allegation, it’s harder to clarify facts or test reliability. Investigators should focus on verifiable evidence – like dates, documents or CCTV – and always record anonymous witness statements in detail.
Disciplinary risk
For a disciplinary process to be fair, the accused must understand and respond to the allegations. If witness or complainant identities are hidden, this right may be compromised. Employers should only grant anonymity where there is a genuine risk of harm or reprisal and no other way to gather evidence.
In Acas v Woods, a dismissal was ruled unfair due to misuse of anonymised evidence. The tribunal criticised the blanket approach to anonymity, lack of witness fear, and failure to allow the accused a fair response.
Best Practice
- Seek corroborating evidence where possible.
- Avoid guaranteeing anonymity without good reason.
- Record anonymous complaints fully and assess their credibility.
- Follow Acas guidance: explore reluctance, provide reassurance, and redact only where necessary.
Handled correctly, anonymity can be a helpful tool – but it must never come at the expense of fairness. If you are looking for advice regarding anonymity or confidentiality in a formal process, please contact us.
Employer liability for harassment
Harassment at work is usually carried out by individuals – but under UK law, employers can still be held responsible. This is because of a legal principle called “vicarious liability”, which means a business can be liable for harassment carried out by an employee if it happened “in the course of employment.”
What does “in the course of employment” mean?
It doesn’t just mean behaviour that takes place at someone’s desk or during office hours. The Employment Appeal Tribunal (EAT), in AB v Grafters Ltd, has reminded us that the term is interpreted broadly.
In that case, an agency worker was harassed by a colleague who had offered her a lift home after she turned up for a shift she wasn’t rostered to work. The EAT said the harassment could still be considered connected to work, even though it happened in a car, not the workplace.
Key points from the case:
- Broad scope: Harassment doesn’t have to happen in the office or during work hours to be the employer’s responsibility.
- Connection matters: If the workplace provided the opportunity (a “springboard”) for the conduct, it may still be “in the course of employment.”
- Employer awareness irrelevant: It doesn’t matter whether the employer knew or approved of the conduct.
What this means for employers
- Anti-harassment policies and training must cover any situation linked to work – not just the workplace itself.
- This includes work socials, client events, and even private settings where colleagues interact because of work.
- Remind staff that professional standards apply wherever work provides the context.
We recommend that you ensure you are compliant with the 2024 increased duty to take reasonable steps to prevent sexual harassment of their staff in, and connected to, the workplace. If you have any concerns that you may not be compliant in this area, please contact us.
And finally… Spotlight: the different ways in which the employment contract can come to an end
The relationship between employer and employee is, at its root, a contractual one – with the contract of employment at its base. You might think that ending the relationship simply involves ‘ending’ the contract. However, the law recognises several different ways in which a contract of employment can come to an end – and each comes with different legal consequences.
1. Dismissal
This occurs where the employer brings the employment contract to an end. If the employee has over two years’ service, they may claim unfair dismissal if the employer didn’t have a fair reason or follow a fair process.
2. Resignation
This happens where the employee ends the contract voluntarily, usually with notice. But even a resignation can give rise to claims if the employee feels forced out (see below).
3. Constructive dismissal
This happens when the employee resigns in response to the employer’s serious breach of contract – for example, cutting their pay or changing their hours without agreement.
4. Frustration
This happens rarely. The contract terminates because something happens that makes it impossible for the contract to continue. This ends the contract automatically, without action from either side.
5. Termination by mutual agreement
This can happen, for example, via a settlement agreement, where both parties agree to part ways on specific terms.
Understanding the difference between these forms of termination is key to managing risk and supporting fair outcomes. Get it wrong, and the consequences can be costly. We’re here to advise further!
