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Employment Rights Act 2025: Why October 2026 changes the risk landscape for Employers

October 2026 marks an important shift in the implementation of the Employment Rights Act 2025. For employers, the significance lies not simply in the number of new employment law obligations taking effect, but in where they operate:

• litigation risk
• trade union engagement
• workplace harassment and, by the end of the year
• consultation over tipping practices.

From 1 October 2026, the time limit for bringing most Employment Tribunal claims increases from three months to six months. From 30 October 2026, employers face important new obligations concerning trade union rights and workplace access, alongside strengthened duties to prevent sexual harassment and new protections concerning third-party harassment.

Taken together, these reforms change the risk landscape in a more fundamental way than a conventional policy update might suggest. They increase the importance of what employers can evidence:

• what was communicated
• what risks were identified
• why decisions were taken and
• what preventative action was in place before a dispute arose.

For boards, HR leaders and in-house legal teams, that should be the focus now.

Employment tribunal claims: a longer window changes the evidential risk

From 1 October 2026, the limitation period for most Employment Tribunal claims will increase from three months to six months.

At first sight, extending Employment Tribunal time limits might appear primarily to benefit employees by giving them longer to consider whether to pursue a claim. For employers, however, its significance is evidential.

Combined with Acas early conciliation, which is now 12 weeks since December 2025, the extension to 6 months means considerably more time may pass between the events giving rise to a dispute and an employer receiving a formal Employment Tribunal claim. The resulting risk is:

• fading recollections
• departing witnesses, and
• documents becoming more difficult to locate.

That makes the quality of contemporaneous evidence considerably more important.

A dismissal decision that appears straightforward today may be scrutinised many months later. The same applies to a grievance investigation, redundancy selection, flexible working decision, reasonable adjustment process or disputed pay decision.

Employers should therefore look critically at the records their processes actually produce, rather than simply whether the correct procedure exists. Disciplinary and grievance records, redundancy scoring, reasonable adjustment assessments, flexible working decisions and settlement documentation should explain not only what decision was reached, but why.

Good record-keeping is no longer simply good HR administration. It is an increasingly important part of litigation strategy.

Trade union rights are moving into mainstream HR governance

The Employment Rights Act 2025 also brings material changes to trade union rights from 30 October 2026.

Independent trade unions will gain a statutory right to access workplaces and engage with workers, physically or virtually, through the new statutory framework.

This matters well beyond businesses with an established history of collective bargaining.

Until now, employers without recognised trade unions may have regarded union engagement as relatively peripheral to day-to-day HR operations. That is becoming increasingly difficult to sustain.

The practical issue is not simply whether an employer complies with a request when one arrives. Businesses should determine in advance:

• who owns a trade union access request
• how it is escalated
• what managers should and should not communicate
• and how a consistent organisational response will be maintained.

That last point is particularly important. An unscripted or defensive response from a local manager can transform what might have been a manageable union engagement issue into a more difficult employee relations problem.

The new trade union rights therefore need to be considered as part of mainstream HR governance, onboarding and workforce communications, rather than as a specialist issue reserved for traditionally unionised sectors.

Sexual harassment: the question will increasingly be what the employer did before the complaint

Employers will be required to take ‘all reasonable steps’ to prevent sexual harassment of their employees. The Act also introduces new protection in relation to harassment by third parties. Government guidance confirms both measures as part of the 30 October reforms.

The distinction between having an anti-harassment policy and being able to demonstrate effective prevention will become increasingly important.

For employers, particularly those whose employees regularly interact with customers, clients, contractors, service users or members of the public, the risk assessment needs to extend beyond conduct between colleagues.

That has obvious implications across hospitality, retail, healthcare and education, but it is equally relevant to professional services, events, property businesses and other organisations whose people work closely with clients and external stakeholders.

A credible preventative framework should therefore extend beyond policy wording. Employers should be considering:

• workplace sexual harassment risk assessments
• training
• reporting arrangements
• manager guidance
• incident records and
• the steps taken in response to known or recurring risks.

Depending on the business, it may also be necessary to examine contractual and operational arrangements governing customers, suppliers, contractors and events.

The strategic question is a relatively simple one:

If a claim arose tomorrow, what evidence could the organisation produce of the steps it had already taken to identify and reduce the risk?

That is a much more demanding test than demonstrating that a policy exists.

Tipping laws: consultation will put transparency under greater scrutiny

Further reforms to tips, gratuities and service charges are expected by the end of 2026. The current timetable includes a requirement for employers to consult workers when developing or reviewing their tipping policy.

For businesses in hospitality, leisure and other sectors where tips or service charges form a meaningful part of remuneration, this should not be treated simply as another consultation exercise.

The greater risk is that consultation exposes longstanding dissatisfaction with:

• how tips are allocated
• whether particular categories of worker or manager are treated differently, and
• how transparent the rationale for those arrangements really is.

Employers should therefore examine tipping policies, tronc arrangements, payroll practices, allocation methodologies and workforce communications before the new consultation requirements take effect.

The important distinction is between a tipping arrangement that is technically documented and one that employees can understand and regard as credible.

Consultation is likely to test that distinction.

The common thread? Evidence before dispute

Although the October 2026 employment law changes concern different areas of the employment relationship, they point employers in broadly the same direction.

• A longer Employment Tribunal limitation period increases the importance of preserving evidence.
• Stronger trade union rights increase the importance of consistency in workforce communications.
• The new sexual harassment and third-party harassment duties increase the importance of demonstrable prevention.
• The forthcoming tipping law reforms increase the emphasis on consultation and transparency.

The practical priority for employers should therefore be to examine not simply whether their policies are legally compliant, but whether their systems will produce the evidence they may later need.

That means reviewing employment documentation and section 1 statements, onboarding materials, staff handbooks, trade union communications, sexual harassment policies and risk assessments, training records, disciplinary and grievance documentation, decision-making templates and tipping policies, where applicable.

There is an important distinction here. The employers best protected against the next phase of the Employment Rights Act 2025 will not necessarily be those with the longest policies or the largest compliance programmes.

They will be those able to demonstrate, contemporaneously and consistently:

• what employees were told
• what risks were identified
• how managers responded
• why decisions were made, and
• what the organisation did before those risks crystallised into litigation or employee relations problems.

As the Employment Rights Act 2025 moves from legislative reform into day-to-day employment practice, the real test for employers will not be whether their policies reflect the new law, but whether their decision-making, evidence and employee relations withstand the scrutiny that follows.

If you wish to discuss how the Employment Rights Act 2025 impacts your business, please contact Dipti Shah, Partner and Head of Employment Law.

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Endometriosis at Work: Why ‘Coping’ Is Not the Same as Being Fine

An employee returns to work after surgery for endometriosis. She is ambitious, engaged and wants to progress. From the outside, she appears to be coping.

But what should an employer do when endometriosis continues to affect an employee’s ability to work?

The Employment Appeal Tribunal decision in Pal v Accenture (UK) Ltd raises important questions about endometriosis at work, disability under the Equality Act 2010 and reasonable adjustments — particularly where symptoms fluctuate or an employee is masking their impact.

In our latest podcast, we spoke to Sanju Pal about her experience and barrister Elaine Banton, who represented her in the appeal. Their discussion produced a simple but useful framework for employers: Ask. Assess. Adjust.

Endometriosis at Work: coping can disguise the real impact

Sanju described a conflict many employees with chronic health conditions will recognise. She was ambitious and wanted to progress, but she did not want her health to define what she could contribute.

So she pushed through.

At one stage she was performing well while working from home, but privately managing significant fatigue by taking naps during the day. She described the difficulty of providing medical evidence while simultaneously wanting to reassure her employer: I am struggling, but I can still do my job.

That is an important distinction for employers.

An employee may minimise symptoms because they fear being viewed as less capable, unreliable or no longer suitable for progression. Good performance does not necessarily mean good health.

Where an employer knows about surgery, recurring symptoms, sickness absence or occupational health involvement, the response should be curiosity rather than assumption.

Reasonable adjustments must address the actual disadvantage

Reasonable adjustments are sometimes approached as a checklist: working from home, reduced travel, different hours or a phased return.

Those measures can help. But an adjustment only works if it addresses the disadvantage the employee is actually experiencing.

If someone returns on reduced hours but remains measured against an unchanged performance target, has the disadvantage really been removed?

If travel is restricted but career progression depends on opportunities the employee can no longer access, what happens next?

Depending on the individual, adjustments might include flexible hours or location, reduced travel, additional breaks, temporary changes to duties or targets, access to rest facilities or further occupational health input.

The exercise should start with the individual, not the policy. What is making it harder for this person to perform, progress or remain in work, and what could reasonably change?

A disability policy is only the starting point

Pal v Accenture also illustrates why having the right policy is not enough.

The Employment Appeal Tribunal found that the original tribunal had not properly analysed whether Sanju was disabled by reason of her endometriosis. In particular, the evidence about the impact of the condition, treatment and the possibility of recurring symptoms required fuller consideration.

The disability and related discrimination issues were sent back to a differently constituted Employment Tribunal for fresh determination.

The case therefore does not establish that endometriosis automatically amounts to a disability under the Equality Act. The question remains fact-specific.

That distinction matters because fluctuating conditions do not necessarily affect somebody in the same way every day. An employee may have periods when they appear well or perform normally, followed by periods when symptoms significantly affect their day-to-day activities.

Managers need to understand that distinction before absence, performance or capability concerns move towards formal action.

Ask. Assess. Adjust.

Elaine’s three-stage approach provides a useful practical test.

Ask. Speak to the employee. Ask what they are experiencing, what has changed and what is making work difficult. Do not assume that because somebody is coping, they do not need support.

Assess. Consider the medical evidence, occupational health advice, absence history, role requirements and performance measures. Then challenge the organisation’s own assumptions. Does this target have to operate in this way? Is the timeframe fixed? Is another approach available?

Adjust. Identify what could reasonably remove or reduce the disadvantage and keep it under review. A fluctuating condition may require a flexible response rather than a one-off solution.

There is a commercial point too. Businesses invest significant time and money recruiting, training and developing people. Before an experienced employee is managed out, it makes sense to establish whether a reasonable adjustment could retain valuable talent.

As Elaine put it during our discussion, if a business has invested years in an individual, why would it not at least explore how that person might be retained?

Is endometriosis a disability under the Equality Act?

Endometriosis is not automatically treated as a disability under the Equality Act 2010. It can, however, amount to a disability where its impact on the individual satisfies the statutory test.

That is one reason Sanju is campaigning for gynaecological conditions including endometriosis, adenomyosis, fibroids, PCOS, PMDD, menopause and menstrual disorders to be expressly recognised within the Equality Act guidance as examples of conditions with fluctuating or recurring effects.

Whatever happens to that campaign, employers do not need to wait for the guidance to change before acting.

They can ask the right questions now. They can look beyond the diagnosis and understand the actual impact on the individual. And they can test whether existing policies, targets or working arrangements can reasonably adapt.

Perhaps the simplest lesson from Sanju’s experience is this:

Do not wait for an employee to stop coping before you start asking questions.

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Are Older People at Work Losing Their Voice? What Tom Jones’s Exit Tells Us About Ageism

Sir Tom Jones has spent more than a decade turning his chair for contestants on The Voice UK. Now, at 86, he says ITV has decided he will no longer continue as a full-time coach, despite his wanting to stay.

He said he was initially told the decision related to the cost of insurance. Reports later referred to a desire to ‘refresh’ the coaching line-up.

His response was characteristically direct: there is never a good time to ‘fire’ ‘an 86-year-old who’s still pretty good at his job.’

I want to be clear that nothing publicly available establishes that ITV has unlawfully discriminated against Sir Tom. The story, however, highlights a potential blind spot for employers: how far does any desire for change rely on assumptions about age?

 ‘Refresh’ is not a problem. What it means might be.

The question captures a recurring tension under the direct and indirect age discrimination provisions of the Equality Act 2010, and in the reasoning tribunals apply when weighing them. An employer, team, or organisation can have entirely legitimate reasons to want change: new skills, updated ways of working, succession planning, fresh perspectives, cost efficiency, or restructuring. None of that is inherently discriminatory.

The risk arises when that desire for change is justified, articulated, or actually motivated by generalised assumptions tied to age rather than to the individual’s actual performance, skills, or conduct. For example:

• Assuming someone is ‘set in their ways,’ resistant to new technology, or unable to adapt because of their age, rather than because of any evidence about that specific person.
• Using language like wanting ‘fresh blood,’ ‘new energy,’ or a ‘more agile’ team in a way that, on the facts, is really a proxy for wanting younger staff.
• Structuring a decision (e.g. redundancy selection, non-renewal, restructuring criteria) so that it disproportionately or systematically disadvantages older (or younger) employees, without objective justification tied to a genuine business need.

The line is crossed when the ‘desire for change’ stops being about identifiable, job-related criteria and starts resting on a stereotype about what people of a certain age are like, can do, or are willing to do.

Tribunals in this area typically look at whether the employer can point to a proportionate means of achieving a legitimate aim, and separately, whether the actual language (for example, in emails, meeting notes) and reasoning (for example, in selection criteria, outcome records) used by decision-makers reveals age-based assumptions rather than individualised, evidence-based judgments about the person in question, their actual performance or conduct.

Quality of decision making

Capability, experience, adaptability and ambition are individual characteristics, not proxies for age. Age discrimination nonetheless occupies an unusual position in discrimination law: unlike most protected characteristics, direct age-based treatment can sometimes be objectively justified, provided it serves a legitimate business objective and the means used are proportionate to it.

However, justification requires more than attaching a commercial explanation to a decision afterwards. An employer should be able to identify the legitimate objective it was trying to achieve and explain why the approach it took was proportionate.

That makes the quality of the decision-making particularly important.

The paperwork usually tells the story

When an organisation makes a difficult decision involving somebody’s career, the question is not simply whether management can articulate a reason afterwards. It is whether that reason is supported by what actually happened at the time.

If an employee is said to lack the skills required for the future, where was that skills gap identified?

If performance was the concern, what did the performance evidence show? If the business genuinely needed a different type of role, was that requirement defined before the individual was selected? If the language internally was about somebody being ‘past it,’ lacking energy or needing to make way for a younger generation, then a much more difficult picture begins to emerge.

Good documentation will not rescue a discriminatory decision. However, clear objectives, consistent criteria and evidence-based reasoning will make it easier to show that a decision was driven by genuine business needs and not assumptions about age.

Ageism works in both directions

Sir Tom’s situation has attracted attention because he is 86 and says he still wanted to do the job.

But the same principle applies at the opposite end of a career.

A 60-year-old can be overlooked because somebody assumes they will struggle with new technology and  a 25-year-old can be denied responsibility because they are considered too young to handle it. A candidate may also be unlawfully rejected because they are thought unlikely to `fit’ the age profile of an existing team.

Employers should be just as cautious about assuming a younger employee is not ready to lead, lacks maturity or needs more years behind them before being given an opportunity.

Businesses are entitled to make difficult decisions. They can restructure, change strategy, plan for succession and recruit different skills. What they should avoid is allowing somebody’s age to answer a question that should really be answered by evidence.

An 86-year-old should not lose their voice because somebody assumes their best work is behind them. Nor should a 25-year-old lose theirs because somebody assumes they are not yet ready to be heard.

When change is being considered, the question is simple: what can this person actually contribute?

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