Welcome to your Quarterly Employment Law Bulletin from Roots HR.
This quarter we update you on changes being implemented from the Employment Rights Act 2025, new obligations on third-party harassment, bereavement rights and more…
Employment Tribunal claims: six months is the new three
One of the most significant Employment Rights Act 2025 changes this October arrives slightly earlier than the rest
From 1 October 2026, where an employment tribunal claim currently has a primary time limit of three months, that period increases to six months.
Employees will therefore have considerably longer to decide whether to take action and begin Acas Early Conciliation.
What difference will it make?
The practical impact goes beyond simply changing the date on the limitation calculator.
First, social sector employers may find that disputes remain “live” for longer. An employee who might previously have needed to act relatively quickly can now wait several months before starting Early Conciliation.
That creates an increased risk of memories fading and evidence disappearing. Managers may leave, emails and other records may be deleted under normal retention processes, and witnesses may struggle to recall precisely what happened months earlier.
It may also make data subject access requests (SAR) more useful to potential claimants. With longer before limitation expires, employees have more opportunity to use a SAR to obtain documents before deciding whether to pursue proceedings.
What should you do?
The change does not require a new policy, but it should prompt a review of how potential claims are managed.
Where a claim is realistically anticipated, preserve relevant documents and obtain accounts from key witnesses while events are fresh. If an important witness is leaving, speak to them before they go.
Document retention periods within your policies may also need revisiting to ensure relevant material survives throughout the longer limitation period, plus any extension associated with Acas Early Conciliation (which is currently up to 12 weeks). Social sector employers may wish to consider a document retention period for casefiles / records of between 12 – 15 months.
If you need support with a complex employee relations case, or you want to talk about HR document retention, contact us.
You can find out more about this, and other changes from the implementation of the Employment Rights Act 2025 through our latest Employment Law Update webinar, available here.
Harassment law changes: is your organisation ready for 30 October?
Two important changes to harassment law take effect on 30 October 2026, and both require social sector employers to think proactively about where harassment risks arise.
From ‘reasonable’ to ‘all reasonable’ steps
Since October 2024, employers have been under a positive duty to take reasonable steps to prevent sexual harassment of employees. From 30 October, that becomes a duty to take all reasonable steps.
That small change in wording raises the bar. Employers should be asking whether there are further reasonable measures they could take, rather than simply whether the measures already in place are adequate.
That is likely to mean revisiting existing sexual harassment risk assessments. Are the particular risks within your organisation identified? Are policies backed up by effective training? Do employees know how to report concerns? Are managers equipped to respond?
Third party harassment returns
The second change concerns harassment by people outside the workforce, including clients, service users, suppliers and visitors.
Employers will be liable where an employee is harassed by a third party in the course of employment and the employer failed to take all reasonable steps to prevent it.
That makes third-party risk an important part of the October review. A drop-in service may need to consider service user behaviour towards staff and a charity retailer, abusive customers.
Possible measures might include clear customer conduct standards, reporting arrangements, instructions to managers, warnings to third-parties and additional safeguards for higher-risk roles.
What should you do now?
Review your harassment risk assessment (including any sexual harassment risk assessment) with both changes specifically in mind. Identify where employees interact with third parties and what could reasonably be done to reduce those risks.
From 30 October, a policy and periodic training may be only the starting point. The focus will increasingly be on whether the employer has identified its actual risks (including third party risk) and taken all reasonable preventative steps available to it.
If you need further advice in respect of existing (or new) harassment policies, or training for staff, contact us.
Duty to inform workers of their right to join a trade union
One of the Employment Rights Act 2025 changes expected this month has been pushed back. The new duty requiring employers to inform workers of their right to join a trade union was originally due to take effect on 30 October 2026. The Government has now confirmed that it will instead come into force on 1 January 2027.
The Government has now published its response to last year’s consultation, giving employers a much clearer picture of how the new duty will work in practice.
What will social sector employers have to do?
Employers will have to provide workers with a standardised statement, the wording of which will be set by regulations. Employers will not be free to rewrite it, although certain workplace-specific information can be added.
The statement will include information about the functions of trade unions, recognised unions and statutory access agreements where relevant, and workers’ statutory rights relating to union membership. It must also signpost the Certification Officer’s list of trade unions.
For new workers, the statement must be provided directly alongside their written statement of employment particulars.
For existing workers, employers will have more flexibility. They can provide the statement directly or make it continuously and reasonably accessible, for example through a staff handbook. Existing workers must initially receive the statement, or be told where to find it, by 5 April 2027. Thereafter, employers using direct communication must reissue it annually by 5 April. Those using an indirect method must instead send an annual reminder explaining where it can be found.
The statement will also need to be reissued within one month if the identity of a recognised union, or a union with a statutory access agreement, changes.
What should you do now?
For now, you should identify any recognised unions or statutory access agreements, decide how you intend to communicate with existing workers and watch for the regulations and detailed guidance, which are expected in the coming months.
Trade union access: what changes on 30 October?
From 30 October 2026, independent trade unions will have a new statutory route to access workplaces and communicate with workers. For businesses with little or no existing union involvement, this could be a significant change.
What does “access” mean?
A union with a certificate of independence will be able to request access for purposes including meeting, supporting, representing, recruiting or organising workers, and facilitating collective bargaining. It does not extend to organising industrial action.
Importantly, the union does not need to be recognised by the employer, and the workers concerned do not need to be union members.
Access can take two broad forms:
- physical access, with union officials entering the workplace; and
- communication with workers, directly or indirectly, including digital access. This might involve an employer facilitating an online meeting or circulating an email on the union’s behalf. It does not mean giving the union direct access to the employer’s IT systems or employee data.
Employers cannot simply insist on digital access instead of physical access, or vice versa. There is a statutory presumption in favour of access, provided it does not unreasonably interfere with the business.
Can you say no?
There is some scope to resist access, but a blanket refusal will be difficult to justify. Access should be refused entirely only where that is reasonable in all the circumstances.
Statutory access is only applicable where the employer has 21 or more workers overall.
It may be reasonable to refuse access in certain circumstances, including where another independent union is already recognised in respect of the workers concerned, there is an ongoing statutory recognition process, or there are overlapping access arrangements or requests. Health and safety, security and operational considerations may also affect the terms on which access is permitted.
How does the process work?
A union can make a formal access request. The employer has 15 working days to respond, after which there is normally a 25-working-day negotiation period. If terms cannot be agreed, either party can refer the matter to the Central Arbitration Committee (CAC), which can decide whether access should be granted and, if so, on what terms.
For social sector employers with 21 or more workers, the practical priority is to decide who will receive and manage access requests, understand the tight statutory timetable, and consider now how physical and digital access could work without unnecessarily disrupting the business.
Bereavement leave: is your policy ready for April 2027?
Many employers already offer some form of compassionate or bereavement leave.
From April 2027, however, there will be a statutory minimum to work around.
The Government has now confirmed how the new day-one right to bereavement leave is intended to operate.
Who will be covered?
Employees will be entitled to up to two weeks’ unpaid leave following the death of a spouse or civil partner, long-term partner, parent, adult child or sibling. A range of step, half, adoptive, foster and kinship relationships will also qualify.
The statutory definition has limits. Grandparents, grandchildren, wider family members, close friends and ‘chosen family’ are not included. Employers can, of course, continue to offer more generous arrangements.
Pregnancy loss before 24 weeks will also be covered, including miscarriage, ectopic and molar pregnancy, termination and IVF embryo transfer loss. The right will extend beyond the person who was pregnant to include partners and intended parents.
How will the leave work?
Flexibility is a central feature of the new regime.
The two-week entitlement will reflect the employee’s normal working pattern and can be taken as individual days rather than one continuous block. Employees will have 56 weeks following the bereavement in which to use their entitlement.
Notice requirements will also be relatively light touch. During the first eight weeks after bereavement, notice need only be given before the employee starts work that day, or as soon as reasonably practicable afterwards. After eight weeks, one week’s notice will be required.
Employers will not be entitled to require evidence of the bereavement.
What about Parental Bereavement Leave?
That remains a separate right. Where a child under 18 dies, or there is a stillbirth after 24 weeks, an employee may qualify for Parental Bereavement Leave and potentially Statutory Parental Bereavement Pay.
In relevant circumstances, an employee could qualify for leave under both regimes.
Time for a policy check
Social sector employers should review existing bereavement, compassionate leave and pregnancy loss policies before April 2027. Look particularly at who qualifies, how much leave is available, whether it is paid, how it can be taken and what notice or evidence is required.
The statutory scheme is intended to provide a floor, not a ceiling. The challenge is therefore not simply adding a new entitlement but working out how it fits with what your organisation already offers.
If you are looking for support in reviewing your existing policies, please contact us.
Failure to make reasonable adjustments: EAT confirms managers can be personally liable
Discrimination claims are not always just a problem for the employer. Individual employees can sometimes find themselves named personally in employment tribunal proceedings too.
Under the Equality Act 2010, employers can be liable for discriminatory acts carried out by employees in the course of their employment. But the individual responsible for the act can also be personally liable.
That principle is perhaps easiest to understand where, for example, a manager makes a discriminatory comment or harasses a colleague. But does it also extend to something that is technically the employer’s responsibility, such as the duty to make reasonable adjustments?
The EAT in Merriman v 1st Staff Ltd and others has confirmed that it can.
What happened?
Ms Merriman was engaged through an agency arrangement to tutor a person with special needs. After developing a disability which made attending in person difficult, she asked to teach online instead.
She brought a claim alleging a failure to make reasonable adjustments against 1st Staff and four individuals working for the business.
The tribunal initially struck out the claims against the individuals. It considered that the reasonable adjustments duty rested with the employer, so only the employer could be liable.
The EAT disagreed.
Although the duty to make reasonable adjustments falls on the employer, a business necessarily acts through its employees and agents. Where an employee’s conduct in the course of their employment results in a breach of that duty, they can potentially be personally liable alongside the employer.
The claims against the four individuals were therefore reinstated.
What does this mean for employers?
Merriman is a useful reminder that handling reasonable adjustments is not simply a corporate responsibility.
Social sector employers should consider guidance and training for managers around reasonable adjustments and consider adding reference to the point made in Merriman into training on disability issues in the workplace. A risk of personal liability may help to focus the mind on a fair and reasonable outcome where managers are handling reasonable adjustments issues. Managers involved in considering requests should understand the legal duty, know when to involve HR, or rake external HR advice and properly engage with possible adjustments.
Perhaps most strikingly, an individual may still be personally liable even where the employer successfully argues that it took all reasonable steps to prevent the discriminatory conduct from occurring.
If you would like any advice or support with considering reasonable adjustments, please contact us.
Right to work checks: who do you need to check now?
Right to work checks have traditionally been an employee onboarding issue. From 1 October 2026, social sector employers need to cast the net more widely.
Changes to the illegal working regime have extended right to work obligations beyond traditional employment relationships. Depending on the arrangement, businesses may now need to carry out checks on individuals they might previously have regarded as outside the process altogether.
That potentially includes:
- workers who are not employees;
- casual and zero-hours workers;
- individual contractors; and
- agency workers and others supplied through contractual chains.
Importantly, this does not mean that someone becomes an employee or worker for wider employment law purposes. The right to work regime has its own definitions and deliberately casts a wider net.
Nor does every self-employed person now need a right to work check.
The label attached to the relationship is not decisive, but genuinely independent businesses providing services to their customers will generally remain outside the scheme. The Home Office guidance gives the examples of an independent plumber providing services to members of the public and a graphic designer contracting through their own personal service company.
What should you do?
Map your workforce. Look at consultants, contractors, casual staff, agency arrangements and anyone else personally providing work or services. Establish which arrangements now fall within the regime, who is responsible for carrying out the check and whether your onboarding processes prevent someone starting work before it has been completed.
The mechanics of right to work checks have not fundamentally changed. What has changed is the group of people who may need one.
That makes identifying who needs to be checked every bit as important as knowing how to check them.
And finally, how much can a bottle of water cost? For one Lidl employee, rather more than 17p.
In Oxborough v Lidl, Mr Oxborough had worked at Lidl for more than 10 years when a customer arrived at his till with a bottle of water taken from a multipack. It had no barcode, so the customer swapped it for a bottle that could actually be scanned, leaving the original behind.
Later in his shift, Mr Oxborough drank from the abandoned bottle and used some of it to top up his own drink. Why? He said he was dehydrated. And why not drink what was already in his own bottle? He had made his squash too strong. Mr Oxborough believed the water could simply be written off. Unfortunately, Lidl had a different view. The correct procedure was for the bottle to be written off by a manager and donated to charity. Mr Oxborough neither paid for it nor asked for it to be written off.
CCTV was checked. An investigation followed. Mr Oxborough was dismissed for gross misconduct. All over 17p worth of water. Perhaps surprisingly, the employment tribunal found the dismissal fair.
The point was not really the 17p. Lidl had a zero-tolerance approach to theft, Mr Oxborough had received recent training, the relevant procedures were well known, and the company had investigated before deciding what to do. The tribunal stressed that its job was not to decide whether it would have dismissed him, but whether dismissal was within the range of reasonable responses open to Lidl.
So, the employment law lesson for the month? Sometimes 17p really can cost you your job. And, perhaps, always go easy on the squash.
