CLQEB Autumn 2026
Another month, another Prime Minister. As Andy Burnham starts to tackle his growing inbox, many employers may be wondering how he is going to square the circle of pursuing economic growth. The CIPD’s Labour Market Outlook for August reveals that employers remain cautious about recruiting staff, with only 62% planning to recruit over the next three months, suggesting that many investment plans are on hold while they adjust to their new obligations under the ERA 2025, compounded by an uncertain economic outlook. As ever, our team is here to help, so please do get in touch with your usual contact. Employment law news updates below:
ERA 2025 changes in the next 4 months
Changes from 1 October
Employment Tribunal standard limitation period changes will be introduced. This will double the time in which a claimant has to lodge a claim from three to six months. The requirement to notify ACAS and participate in the early conciliation process remains in place.
Changes from 30 October
Trade Unions: Trade Unions will gain the right to access workplaces employing 21 or more staff to recruit new members (which can be as frequently as weekly), regardless of whether the organisation has previously had any form of union representation or involvement. Fines can be imposed on employers that refuse access, rising to £500,000 for repeated refusals.
Workplace sexual harassment: employers must take ‘all reasonable steps’ to protect their employees from sexual harassment, including from third parties, such as customers and suppliers. Acas advises employers to ‘consider treating it as a workplace culture and risk issue’ rather than as standalone incidents. Employers must also remember that since April 2026, reports of sexual harassment can qualify as a protected disclosure in a whistleblowing claim under ERA 2025.
Changes from 1 January 2027
The government’s Unfair Dismissal Factsheet explains the following changes that come into force on 1 January 2027:
The reduction of the qualifying period for protection against unfair dismissal from two years to six months.
The right of employees to request written reasons for dismissal from two years to six months.
The removal of the qualifying period for protection against unfair dismissal for reason of spent convictions.
The removal of the cap on unfair dismissal compensation.
Practical Advice: Employers are advised to plan ahead, below we set out a few top tips to consider:
With immediate effect undertake an audit of employees employed since 1 July 2026 to consider any performance concerns, misconduct or potential for redundancy ahead of the changes in January and deal with the same before they achieve 6 months service by 1 January 2027.
Ensure any probationary periods for employees employed after 1 January 2027 are no longer than 5 months.
Ensure probationary period reviews are undertaken for those employed after 1 January 2027 and appropriate actions taken if necessary to terminate before the 6 months qualifying service is achieved. Ensure you keep documentary evidence of the reasons why termination actions were taken as this will be critical to the fairness of any dismissal.
Have robust probationary period policies so all managers know what they need to do and there is a consistent approach.
Any disciplinary policies contingent on length of service will need to be reviewed.
Any unfair dismissal terminations after 1 October 2026 will be subject 6 months less 1 day to bring a Tribunal claim.
Non-renewal of fixed term contracts on expiry can result in an unfair dismissal claim too and therefore those expiring after 1 January 2027 need to have justifiable reasons for the non-renewal.
You should, as always, contact your usually CL team member for advice before taking any action to ensure the advice is tailored to your circumstances.
Government response to consultation on changes to flexible working arrangements
In response to its consultation that concluded in April 2026, the government will bring in secondary legislation in 2027 to:
a. Set out a process for consulting employees about their request
b. Bring the reasonableness test introduced through the ERA 2025 into force.
Acas will update its Code of Practice on requests for flexible working, setting out new statutory guidance for employers and employees and invite feedback from interested parties before the new guidance is laid before Parliament in summer 2027.
Immigration changes from 1 October
The government is significantly expanding the Right to Work regime from 1 October 2026 and employers are advised to review their arrangements now to ensure compliance with the new rules.
The most significant change is the extension of Right to Work checks beyond traditional employees. The new regime will apply to a broader range of working arrangements. This is an important development for businesses that rely on flexible labour and those that have historically regarded contractors or self-employed individuals as being outside the scope of right to work compliance. Read our full factsheet here.
Constantine Law in the news
After a recent employment tribunal which found that an employee had been unfairly dismissed after being overheard making critical remarks about their manager, Alan Lewis writes in People Management (August 25) that this is a ‘cautionary tale’ for businesses. Read the full article here.
In Legal Futures, John Hayes reflects on how widespread use of AI may inadvertently result in the disclosure of confidential and legally privileged communications to a third-party AI platform. This matters, particularly in highly sensitive and contested disputes, which describes many employment cases, because if privilege is lost or successfully challenged, communications that clients assumed were protected may become disclosable in litigation. Read the full article here.
Why should employers care about the NEET crisis? A recent Constantine Law blog post sets out in clear terms why it matters. Encouraging young workers into the workforce is vital to the government’s plans to galvanise the UK’s stagnant economy, struggling to recover from successive crises from Brexit, the Covid-19 pandemic to the wars in Ukraine and Iran. Alan Milburn's interim report on youth unemployment has estimated that the cumulative annual cost to the UK economy of 1m people being out of employment, education or training is up to £125bn a year. Continue reading…
Finally, a warm welcome to Anita Vadgama who joined Constantine Law in the summer. Her particular area of expertise is in disability discrimination and Group Income Protection (GIP) benefits.
Cases
Employer not obliged to remind employee of right to request to be accompanied.
Wolfe v Taka Mayfair Limited [2026] EAT 106
Summary: This case reminds employers that they are not legally obliged to remind employees of their right to be accompanied to a disciplinary meeting. Mr Wolfe was called into a meeting without notice or explanation following his shift as a sommelier at Taka Mayfair, a London restaurant. At the conclusion of the meeting he was dismissed. At no point did he ask to be accompanied as he hadn’t realised that he was in danger of being dismissed. He brought a claim for breach of section 10 of the Employment Relations Act 1999. The original tribunal dismissed his claim on the grounds that section 10 requires the employee to request the right to be accompanied, reasoning that without a request, no right can arise, regardless of whether or not the employee was aware of the purpose of the meeting. The EAT upheld the ET’s ruling, noting that there was no ambiguity in the wording of the Act and that it was a matter for Parliament to address the issue.
Key takeaway: Although in this case both tribunals dismissed Mr Wolfe’s claim, it is worth noting that some tribunals may take a dim view of employers deliberately not informing employees that they have a right to request a companion, particularly if the meeting is a disciplinary potentially leading to dismissal. Therefore, it is prudent to ensure that all policies covering disciplinary and grievance matters refer to an employee’s right to request to be accompanied.
Detriment did not arise from a protected act
Leighton v Renfrewshire County Council [2026] EAT 95
Summary: Mr Leighton was a team leader for the Council’s Autism Connections Service. He was asked to help one of the Council’s tenants, who had autism and mobility issues, move into temporary accommodation while repair works were undertaken. This task fell outside the normal course of his duties. Following the successful completion of the move, the tenant made a complaint against Mr Leighton for a breach of confidentiality and, as a result, Mr Leighton was subsequently moved to other duties, which he considered a detriment. A disciplinary process was instigated but Mr Leighton left for another post before it concluded. Mr Leighton brought a claim for disability discrimination on the grounds that his helping the disabled tenant was a protected act. However, the ET did not agree and dismissed his claim. It also ruled that the detriment arose because of the complaint which was quite separate from the protected act so even had the latter been established, the claim would have failed anyway. On appeal, the EAT disagreed with the ET’s assessment of the protected act but agreed that the protected act and the complaint were unconnected and therefore the claim should fail.
Key takeaway: If a detriment arises following a protected act but the two events are unconnected, employers need to make that very clear. Had the claimant proved that the detriment had arisen a direct result of a protected act, in this case, helping a disabled tenant move, his claim might have succeeded. As it was, the employee’s redeployment arose from the complaint, not because he helped a disabled tenant.
Tribunal decision on disability discrimination overturned at appeal
Cunningham v BBC [2026] EAT 92
Summary: Ms Cunningham was a BBC Scotland broadcaster who worked a shift pattern. She informed the BBC in March 2023 that she had been diagnosed with diabetes 2 and was signed off work for a month after being referred to occupational health (OH). During her time off she asked her employer to make adjustments to accommodate her disability. The BBC agreed to change her shift pattern but kept her on the BBC Scotland late shift that ended at 12.30am, contrary to OH’s recommendation. In June she was subjected to a disciplinary process after making a significant timing error relating to a live broadcast, but no further action was taken. In November, Ms Cunningham brought a claim for disability discrimination relating to the disciplinary action and a failure to make reasonable adjustments in relation to the one late shift she had continued to do. In response the BBC maintained that diabetes 2 did not automatically amount to a disability; however, the ET found that the ‘uncontested position in the OH reports’ was significant and would have severely impacted Ms Cunningham’s day to day activities and that she was found to be disabled from June 2023. However, although the ET found that she was disabled it concluded that the BBC did not know this, or be expected to know it, during the relevant timeframe. At appeal, the EAT found that the ET’s conclusion was wrong and that the BBC did know about her disability and the impact on her work schedule, and it failed to consider whether removing her from her one late shift would have been a reasonable adjustment. This point was remitted back to another tribunal to consider. The EAT dismissed her claim that the error that led to the disciplinary process was related to her disability.
Key takeaways: It is important that employers take proper note of any information they receive about an employee’s health, particularly where disability is involved. This case also underlines that employers must ask pertinent questions once they know of someone’s disability, particularly when OH is involved and take note of recommended reasonable adjustments and be quite clear on their reasons for not following those recommendations.
Individual employees may be personally liable for failure to make reasonable adjustments
Summary: The claimant, Ms Merriman, was engaged by an agency, 1st Staff Ltd, as a tutor. She delivered face to face tuition. However, she developed disabilities making attendance at the tutee’s premises difficult and sought adjustments including online teaching. She discussed the adjustments she required to accommodate her own disabilities with the agency and their staff. The agency refused her request for the adjustments. She brought reasonable adjustment claims; the tribunal allowed the claim against the agency but struck out claims against four individual employees of the agency on the basis that only employers owe the duty to make reasonable adjustments. She appealed to the EAT who allowed the appeal and reinstated the claims against the individual employees of the agency. The EAT held that although the duty rests on the employer or principal, employers act through employees; where an employee’s act amounts to a breach it may render the employee personally liable. There is no tribunal discretion to decline a finding of personal liability and the EAT found no principled basis to allow the claim against the employer but not the individuals.
Key takeaways:
Ensure managers and HR understand that individual employees may face personal liability for failures to implement reasonable adjustments;
Strengthen processes so adjustment requests are promptly assessed, actioned and escalated, with clear ownership by named individuals;
Provide targeted training to decision makers on the duty to make reasonable adjustments and the risks not to implement the same;
Document requests, decisions, timelines and reasons, including any steps taken to prevent discrimination, to support a potential reasonable steps defence;
Particularise roles and responsibilities in case management notes so that, if litigation arises, individual acts and omissions are identifiable.
Restraint clause was unreasonable
Summary: This case raises significant issues ‘about restraint of trade in the context of contracts of employment’ and will be of particular interest for those companies that take on trainees. Geeks employed Mr Watts as a trainee IT engineer. He entered into two employment contracts. The first was an employment contract that stated, in addition to the usual elements, that Geeks would pay a ‘career development loan’ for Mr Watts’ formal training, the cost of which they would be entitled to recover if Mr Watts terminated his employment within 18 months of the training taking place. The contract also included a restrictive covenant that would prevent Mr Watts from working with some of Geeks’ clients for a two-year period following his departure. The second agreement was the ‘Contract of Training Investment’ covering a six-month training period in which Mr Watts ‘agreed to meet the Training Cost Debt that is the estimated financial cost of supporting you in this position.’ This debt, calculated to be £8,108, was to be paid either by work contribution within a specified time, or if his employment ended before this time, he would have to repay the outstanding amount. In the event, Mr Watts left Geeks after eight months after he had been refused a pay rise and joined a competitor for a considerable salary hike. Geeks sought to recover the cost of the training received. Mr Watts’ defence was that the training contract constituted an unlawful restraint of trade. The county court held that the Clawback Provisions did amount to a restraint of trade but that they protected a legitimate interest and were not unreasonable. Mr Watts was given leave to apply to the Court of Appeal. The Court of Appeal set aside the county court’s decision after determining that the repayment provisions were unreasonable and unenforceable for two reasons. First, the provisions applied regardless of Mr Watts’ reason for leaving Geeks’ employment (as the court pointed out, they would still have applied had he left to become a carer for his grandfather who had dementia). Second, as Mr Watts was not paid much more than the minimum wage, by the time the loan was factored in, he was reduced to the ‘equivalent of an unpaid intern.’
Key takeaways: Employers must use restraint clauses judiciously. They should only be used to protect a legitimate business interest and should go no further than what is reasonably necessary to protect those interests.