Welcome to our Autumn edition of CL Q.E.B
- Constantine Law
- Sep 24
- 8 min read
Updated: Sep 26
The Employment Bill’s progress to Royal Assent continues apace despite the retreat of Angela Rayner, its most prominent cheerleader, to the back benches. Before the House rose for the summer, the Lords made several amendments including government approved ones such as those to the ‘fire and re-hire’ provisions. However, their proposed amendments that included replacing the day 1 right to claim unfair dismissal with a 6-month qualifying period and introducing the right to request a guaranteed hours contract rather than be offered one were rejected by the government. Anyone arguing that Ms Rayner’s removal from the front bench would have emboldened those wishing to remove some of the more onerous employer obligations will be disappointed. The Bill’s passage to the statute books appears to be as unencumbered as it was before the recess.
Parental Leave Review
Acknowledging that the system of parental leave and entitlements has become increasingly complicated, the government launched a review in July which is due to report in January 2027. The stated purpose is to:
articulate objectives for the parental leave and pay system
understand what is and is not working well for families and employers
consider the options and principles for a parental leave and pay system to better support the objectives
develop a roadmap for an improved system that supports the objectives and can be delivered within a fiscally constrained economic context
Employment Rights Bill
These are some of the main government-backed amendments that returned from the Lords before the House rose for the summer:-
Non-disclosure agreements: introducing a contractual restriction preventing employers from using NDAs to stop employees reporting instances of harassment and discrimination in the workplace.
Fire and rehire: the terms have been softened by introducing a list of restricted variations, including pay, pensions, hours worked and leave, that cannot be changed using ‘fire and rehire’. Any attempt to do so will be automatically unfair. Anything not listed as restricted will be deemed non-restrictive and can be altered via fire and rehire, subject to unfair dismissal rules. The government is planning to consult on fire and rehire this October, with the new rules coming into effect in October 2026.
Bereavement leave: in addition to introducing statutory bereavement leave, amendments seek to extend the right to cover those who have suffered a stillbirth or miscarriage. This will also be subject to consultation this autumn, with implementation in 2027.
Zero hours contracts: these provisions, already complicated, are set to become even more so, with changes to remove the automatic duty to offer guarantee hours, the introduction of a 26-week reference period, changes to short notice cancellation payments, and a pay parity test with agency workers.
Whistleblowing: proposed changes include a requirement that the disclosure must be in the ‘public interest’ rather than the whistleblower believing it to be so, plus a new ‘Office of the Whistleblower’.
Employment Rights Bill: Implementation Timetable
We touched on this in our last CLQEB as it had only just been published. It sets out the timetable for both consultations and the implementation of policy measures, noting the majority of regulations will take effect on common commencement dates, namely 6 April and 1 October. As a reminder, you can see the full list here.
EHRC Code of Practice
The EHRC has now delivered an updated draft of its Code of Practice with guidance on how employers can apply the Supreme Court ruling in For Women Scotland Ltd v The Scottish Ministers in the workplace, to the Minister for Women and Equalities. It will be published once Parliament has reviewed it.
In addition, the EHRC has written to 19 organisations asking them to review their policies that have been identified as misrepresenting the Equality Act 2010. This follows the government’s ‘call for input’ last year which looked at examples of organisations’ policies that incorrectly suggest people have a right to access single-sex spaces according to their self-identified gender. As a result of this exercise it referred 404 organisations to the EHRC to analyse.
Constantine Law in the press
With the rise of AI continuing to dominate the airwaves as people try and figure out what this means for the future of employment, in particular the knowledge sector, John Hayes considers the implication for the legal sector. In a recent Times article, he comments on how the democratisation of legal knowledge is reshaping how employees challenge dismissals, grievances, and workplace treatment, and the potential knock-on effect for the legal profession. You can read the article here (£).
Elsewhere, the firm is delighted to welcome Vivien Cochrane as the seventh partner appointment to its growing regulatory team. She specialises in general crime, financial crime fraud and Proceeds of Crime Act (POCA) investigations, having been involved in complex multi-handed fraud and bribery prosecutions. You can find out more about Vivien and how she can help you here.
New Business Immigration team
And the firm has recently recruited a new Business Immigration team. Alex Finch and Rebecca Tester lead the team, advising across the full spectrum of the UK immigration system. Commenting on the appointment, Managing Partner, John Hayes said: "business immigration law works hand in hand with employment law as employers seek to attract and retain the best talent, from wherever in the world they come". Find out more about the team here.
Last but not least…
We’re delighted to have been shortlisted as finalists in the Personnel Today Awards 2025 in the Employment Law Firm of the Year category. The Employment Law Firm category recognises outstanding legal support provided to HR teams, with a focus on client service, results, and innovative legal thinking. The winners will be announced at the awards ceremony at the Grosvenor House Hotel on 18 November 2025 – so keep your fingers crossed for us!
Case law
Employer not obliged to make reasonable adjustment
Hindmarch v Northumberland NHS Foundation Trust
Summary: Mr Hindmarch was a non-paramedic ambulance driver who was dismissed following a lengthy period of sickness absence. His claim for unfair dismissal and disability discrimination was dismissed after the Tribunal found that his employer had not only followed all their procedures and policies to the letter, but had, after an extensive review, determined correctly that making the requested reasonable adjustment was unlikely to have the desired effect, namely for him to return to work. This case demonstrates that providing an employer can show they have followed the correct procedures, they are not under any obligation to make a reasonable adjustment if it can be proved that it would have no material effect on the employee’s returning to work.
Tribunal’s ‘perverse reasoning’ dismissed job applicant’s disability claim
Summary: Mr. Stedman, who had been diagnosed with autism and ADHD, brought a claim for disability discrimination against Haven Leisure because of the way in which it had handled his unsuccessful job application. The judge at the original hearing dismissed his claim on the basis that he was not disabled within the meaning of the Equality Act, noting that he was as able to carry out day-to-day functions as well as someone without a disability. At Appeal the EAT found that the judge had concentrated on what Mr Stedman could do rather than what he couldn’t do and had not sufficiently considered the degree to which his impairment adversely affected his day-to-day activities, nor had it fully considered the medical evidence. Furthermore, in considering what determines ‘disability’ under the Act, tribunals must understand that achievements in certain areas do not eliminate the presence of significant challenges in others. The EAT found that the first tribunal had not applied those principles, and that the way in which it had reached its decision was perverse. The case was remitted back to a new tribunal.
Claim for racial harassment proved but ruled out of time. EAT disagreed
Summary: Mr Logo brought a claim for racial harassment against his employer with reference to three distinct incidents: a colleague dressing up in ‘blackface’ at a fancy dress Christmas party; a racially offensive joke told at a work event; and the circulation of a ‘Pure Blond’ beer ad via a WhatsApp group, which included the claimant, featuring white, blond-haired people. At tribunal, although it was accepted that the first two claims did constitute racial harassment, they were deemed out of time and therefore failed, not least as, because of the delay between the events occurring and the claim being brought, individual recollections were too compromised to be useful. The third claim was dismissed as not being related to race. At appeal, the EAT found that the effect of the events in question on the claimant mattered more than the memories of the others involved and, as the tribunal had already accepted that both incidents were examples of racial harassment, the tribunal was wrong not to hear the case. The EAT also disagreed with the tribunal that the circulation of the ‘Pure Blond’ ad was not related to race and that it should have considered how it was perceived by Mr Logo. The EAT remitted the claim back to a fresh tribunal.
Constructive dismissal claim upheld when temporary sickness cover becomes permanent
Summary: Ms Wainwright, a longstanding member of staff with 17 years’ service, was diagnosed with breast cancer following which she was signed off for two periods of sickness absence to receive treatment. In her absence, a colleague was temporarily moved into her role. This temporary replacement was subsequently offered another job so, in a bid to keep her, Cennox offered her Ms Wainwright’s role as a permanent position. On discovering that her job had been offered to another colleague, Ms Wainwright contacted Cennox who told her that the intention was for her to share the job when she returned to work as the role was large enough for two people. Subsequent postings about her responsibilities by the replacement confirmed to Ms Wainwright that she would not be returning to the same job and that it would effectively be a demotion. She raised a grievance, which was not adequately addressed, followed by a claim for constructive dismissal and direct discrimination. The tribunal found that she had been discriminated against and ruled that appointing a permanent replacement while she was on sick leave was not a proportionate means of achieving a legitimate aim. However, the Tribunal dismissed her claim for constructive dismissal. At Appeal, the EAT found that the first Tribunal had not properly considered if she had been constructively dismissed and, if she had, whether that would have been discriminatory. The EAT remitted the claim back to the Tribunal which found that Ms Wainwright had been constructively dismissed and had suffered discriminatory unfair dismissal. This is a timely reminder to employers that cancer is a disability under the Equality Act and caution must be exercised when providing for temporary replacements while someone is on sick leave.
Pilot contracted to Ryanair confirmed as agency worker and entitled to holiday pay
Summary: Mr Lutz was employed by Ryanair as a pilot through an agency, Storm Global. All his day-to-day operational responsibilities and obligations were prescribed by Ryanair, but he contracted his services to Ryanair via a personal service company (PSC) set up and managed by an agency, Storm Global. He had little direct contact with this PSC. His initial contract was to provide Ryanair with his services for a five-year period. His contract stated that he was not an employee or worker of either Ryanair or Storm Global and that he was able to substitute someone else to work instead of him. After two years, his contract was terminated. He brought a claim for unpaid annual leave on the basis that he was a crew member under the Civil Aviation Workers Regulations, and that as an agency worker he was entitled to the same conditions as directly employed Ryanair pilots under the Agency Workers Regulations. The Tribunal found for Mr Lutz, finding that the substitution clause in the contract was a sham and that the PSC was a fiction. Ryanair and Storm Global appealed but the EAT dismissed their appeal, finding that Mr Lutz was an agency worker under the AWR, clarifying that the term ‘temporary’ simply means a finite period rather than a short length of time. The Court also confirmed that Mr Lutz was entitled to paid annual leave as he was a crew member under the CAWR.