Welcome to your Quarterly Employment Law Bulletin from Roots HR.
This quarter we update you on new data protection obligations, employment rights for carers, the Employment Rights Act, use of AI and more…
Data protection complaints: new employer obligation now in force
A significant change to UK data protection law came into force on 19 June 2026. Under the Data (Use and Access) Act 2025, employees and other individuals now have a legal right to raise data protection concerns directly with an organisation before taking their complaint to the Information Commissioner’s Office (ICO).
Complaints could cover a wide range of workplace issues, including employee monitoring, mistakes in personnel records, delays in responding to subject access requests, inappropriate sharing of personal information, or concerns about how artificial intelligence (AI) is being used in employment decisions.
One important point for employers to understand is that employees do not need to use legal language when raising a concern. They may not even describe it as a complaint. For example, an employee saying, ‘I don’t think you should be using my information like that’ could be enough to trigger an organisation’s obligations under the legislation.
The new law requires organisations to have a process for handling data protection complaints. Employers must acknowledge complaints within 30 days and investigate and respond without unnecessary delay. Failing to do so could potentially amount to a breach of data protection law in its own right.
This represents an important change in practice. In the past, many data protection concerns were raised directly with the ICO. Employers are now expected to deal with these issues internally, wherever possible, and to demonstrate that they have effective procedures in place for receiving, investigating and resolving complaints.
You should take steps now to review your current arrangements. Policies and procedures should be updated where necessary, complaint reporting channels should be clear and accessible, and managers should receive training to help them recognise when a data protection complaint has been raised. Escalation routes should also be reviewed to ensure concerns are referred promptly to the appropriate individuals within the organisation.
For more information, or to discuss how Roots HR can help you develop a Data Protection Complaints Procedure please contact us.
The Employment Rights Act (2025)
Implementation of the Employment Rights Act continues, with further changes coming from Autumn 2026 including:
- Time limits for making a claim to an employment tribunal will increase to 6 months. The current time limit for most claims is 3 months. This will change in October 2026.
- From October employers become liable for harassment of staff by third parties (e.g., clients, contractors, public) if they fail to take “all reasonable steps” to prevent it.
- October will also see the implementation of a new negotiating body for adult social care.
- In January 2027 dismissing someone then rehiring them on worse terms and conditions (known as “fire and rehire”) will become an automatically unfair dismissal in most cases. This change had originally been expected in October 2026.
- Also from January 2027, protection from unfair dismissal will become a right after 6 months of being in a job (currently 2 years), and the capon the compensatory award for unfair dismissal will be removed
This last change means that social sector employers will have a much shorter period in which they can dismiss with relatively low unfair dismissal risk and probation periods will become more strategically important with managers needing to identify and address performance, conduct and attendance concerns much earlier.
Many organisations currently operate a six-month probation period, often with a review meeting at the end. Under the new regime, waiting until month six to decide whether someone passes or fails probation may be too late because the employee may already have acquired unfair dismissal rights.
Social sector organisations may want to now be considering a move towards 3-month probation periods with the option to extend by one or two months if concerns remain.
For more information, take a look at our latest blog post on this topic here.
Could greater employment rights for carers be on the way?
The government is currently consulting on ways to strengthen employment rights for unpaid carers and parents of seriously ill children.
The consultation builds on the Carer’s Leave Act 2023, which introduced a right for eligible employees to take up to five days of unpaid carer’s leave each year. However, the government is now asking whether that entitlement provides enough support for employees with caring responsibilities.
Several options are being considered. These include increasing the amount of unpaid carer’s leave available, introducing a new right for employees to return to their role after a longer period of caring-related absence, and creating a statutory entitlement to paid carer’s leave.
The consultation is also seeking views on “Hugh’s Law”, a proposal that would provide leave and financial support for parents and caregivers following the diagnosis of a serious illness in a child.
No changes have been confirmed at this stage, but the consultation highlights the growing focus on the challenges faced by working carers. Many employees are balancing work with caring responsibilities for children, elderly relatives or family members with long-term health conditions, and those pressures can have a significant impact on attendance, wellbeing and retention.
This is an area worth keeping an eye on. If new rights are introduced, employers may need to review policies, absence procedures and manager training. Even if the law does not change significantly, the consultation reflects a wider expectation that employers should support carers in the workplace wherever possible.
The consultation closes on 1 September 2026, and its outcome may give a useful indication of the direction of travel for future family-friendly employment rights.
For more information on supporting carers in your workplace, please read our recent blog.
Disability discrimination: why employers might know more than they think they do
A recent Employment Appeal Tribunal (EAT) case is a useful reminder that employers should not assume an employee is not disabled simply because occupational health has not said so in clear terms.
In Cunningham v BBC, the employee had type 2 diabetes, which caused significant tiredness. The BBC knew about her condition and had made some changes to her shifts. However, it continued to require her to work a late shift that finished at 12.30am.
After the employee made an error during one of these shifts, she was disciplined and brought disability discrimination claims. The BBC argued that it did not know she was disabled at the time.
The EAT disagreed.
Under the Equality Act 2010, a person is disabled if they have a physical or mental condition that has a substantial and long-term effect on their ability to carry out normal day-to-day activities. Whether someone meets this definition is a question of fact. It is not something that occupational health or a GP decides.
The EAT found that the BBC knew about the employee’s diabetes, understood that it was causing fatigue, and had received occupational health advice discussing reasonable adjustments. Taken together, this meant the BBC knew, or should have known, that the employee might be disabled.
This is known as constructive knowledge. In simple terms, it means an employer may be treated as knowing about a disability even if nobody has formally confirmed it. If there is enough information available to raise the possibility of a disability, employers are expected to make further enquiries rather than ignore the issue.
For social sector employers, the lesson is clear. Don’t focus solely on whether an employee has been formally labelled as disabled. Instead, consider the impact their condition is having on their day-to-day activities and whether further investigation or workplace adjustments may be needed. Taking a proactive approach can help reduce the risk of disability discrimination claims.
For further guidance in this area, please contact us.
Wrongful dismissal: why the circumstances behind misconduct matter
Organisations may be familiar with unfair dismissal claims, but wrongful dismissal is a different type of claim. While unfair dismissal looks at whether it was fair for the employer to dismiss the employee, wrongful dismissal focuses on whether the employer was entitled to dismiss without notice.
In most cases, an employee who is dismissed is entitled to receive either their contractual notice pay or their statutory notice pay. However, an employer can dismiss without notice if the employee has committed a serious breach of contract, often referred to as gross misconduct. In those situations, the employer can treat the employment contract as ended immediately and does not have to pay notice pay.
A recent decision from the Employment Appeal Tribunal (EAT) shows why it is important to look at the full circumstances surrounding an employee’s conduct before deciding whether summary dismissal is justified.
In XX v YY, an assistant head teacher sent an inappropriate message to someone she believed to be under the age of 18. However, the employer accepted that she had acted while trapped in a coercive and controlling relationship. She was under extreme pressure and feared serious harm to herself and her children if she did not comply with demands being made of her.
When the conduct came to light, she was dismissed without notice. Her wrongful dismissal claim was initially unsuccessful because the tribunal decided that the pressure she was under was not relevant when assessing whether her actions amounted to a serious breach of contract.
The EAT disagreed. It said that the correct approach is to consider the employee’s conduct objectively and in the context of all the circumstances. The question is whether the conduct was serious enough to destroy the trust and confidence needed for the employment relationship to continue. This included taking account of the duress under which the employee had acted.
This case is a useful reminder that conduct should not be considered in isolation. Even where behaviour appears to amount to gross misconduct, employers should carefully assess any mitigating circumstances before deciding that dismissal without notice, and the loss of notice pay, is justified.
Indirect discrimination: what we can learn from the Dobson case
The Equality Act 2010 protects employees from discrimination at work. One type of discrimination is indirect discrimination. This happens when an employer applies a policy, rule or working practice (known as a provision, criterion or practice, or PCP) to everyone, but it puts people with a particular protected characteristic at a disadvantage.
In cases involving sex discrimination, tribunals recognise that women are more likely to have primary childcare responsibilities. As a result, requirements for flexible working, overtime or weekend working may affect women more than men.
This issue was considered in the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust. Mrs Dobson worked as a nurse and usually worked on Wednesdays and Thursdays. The Trust introduced a requirement for all nurses to work occasional Saturdays. Mrs Dobson argued that this disadvantaged her because of her childcare responsibilities and amounted to indirect sex discrimination.
The Employment Appeal Tribunal agreed that the requirement placed women at a disadvantage as a group and also disadvantaged Mrs Dobson personally. However, her claim was unsuccessful because the Trust was able to show that the requirement was justified and necessary to meet a legitimate business need.
The case provides four useful lessons for employers:
- Consider both the group and the individual. Tribunals will look at the impact of a policy on the affected group as well as on the individual employee bringing the claim.
- You do not need extensive data. Employers are not expected to carry out detailed monitoring of every policy’s impact on protected groups before they can justify it.
- Explore alternatives. While employees do not have to suggest alternatives, it can help if both sides engage in discussions about possible compromises.
- Build in flexibility where possible. A policy is more likely to be justified if there is some flexibility in how it is applied and the employer has considered reasonable adjustments or exceptions.
The key takeaway is that policies which may disadvantage a particular group are not automatically unlawful. The important question is whether the policy serves a genuine business need and whether the employer has acted reasonably in balancing that need against the impact on employees.
If you feel your HR policies need a review, contact us to discuss this further!
When does expressing a view count as a manifestation of a protected belief?
Employees are protected from discrimination because of a protected religion or belief. That protection can extend not only to the belief itself, but also to the way the belief is expressed or “manifested”.
However, not every act by an employee with a protected belief will be a protected manifestation of that belief.
There must be a close link between the protected belief and the act or expression. This principle comes from the case of Eweida v British Airways, which confirmed that there must be a sufficiently close connection, or “nexus”, between the belief and its manifestation.
This issue was considered recently by the Employment Appeal Tribunal in London Ambulance Service v Garrett.
Mr Garrett, a paramedic, was disciplined after stating during a workplace discussion that systemic racism does not exist. He argued that this amounted to discrimination because of his philosophical belief that all people should be treated equally regardless of race or culture.
The EAT disagreed. Although Mr Garrett’s belief in equal treatment was capable of protection under the Equality Act 2010, his comments about systemic racism were not a manifestation of that belief. The EAT found there was not a close enough link between the two. Someone could believe in equal treatment for all, while also accepting that systemic racism exists.
The key lesson is that holding a protected belief does not automatically protect every statement made by an employee. When concerns arise about comments made in the workplace, it is important to consider whether those comments are genuinely connected to the employee’s protected belief. If the link is too weak, the comments themselves may not attract protection under discrimination law.
Dealing with allegations of potential discrimination, Roots HR can advise and undertake workplace investigations. If you need support, please contact us for further information.
And finally
AI has chalked up what is being described as its first court victory – but before the robots start demanding silk gowns and chambers, it’s worth looking a little closer.
The case involved Garfield AI, an AI-powered law firm, helping a freelancer successfully recover unpaid fees in court. AI carried out the heavy lifting before trial – preparing documents, witness statements and the court bundle. However, when it came to the hearing itself, a human barrister still took centre stage, presenting the case and advocating before the judge.
AI is becoming an increasingly common feature of workplace disputes and litigation. Employers may use AI to analyse documents or prepare evidence, while employees and their representatives are likely to be doing exactly the same. Garfield AI’s legal victory demonstrates that AI is able to take a supporting role in employment litigation, but human oversight, expertise, judgement and advocacy remain firmly in charge – at least for now.
