ESPHR Newsletter
August 2026
Hello!
Welcome to August’s newsletter. In this edition, we cover the upcoming Trade Union changes you need to have on your radar – even if you aren’t unionised. We look into vanishing dismissals and how automated discrimination in recruitment is under increased scrutiny. Finally, we review a selection of recent key cases, highlighting the practical lessons they offer for HR professionals.
Employment Rights Act 2025: Trade Union change non-unionised employers need to have on their radar
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo.
The Employment Rights Act 2025 has already made significant changes to the Trade
Union rights , but there are two further incoming trade union reforms due to come into effect this October 2026:
- statutory right of access and
- a duty to inform employees of
their right to join a union.
A statutory right of access
From October 2026, trade unions will have a statutory right to request access to workplaces for a broad range of “access purposes” (i.e. to meet, support, represent, recruit and organise workers – whether or not they are members of a trade union). The actual organisation of industrial action has be expressly excluded from the permitted access
purposes but this new right of access is a unique and significant development for all employers.
Once the new rules are in force, if a union wants to request access to a workplace, it will need to give the employers an “access request” in a prescribed manner (we expect a template to be provided in due course).
“Access” will cover both physical and digital access to the workplace so this could include
email or webinars. Before the response period ends the employer may issue a “response notice” where they can either agree or object to the request (in whole or in part). If the employer agrees, a “negotiation period” will follow, during which the parties will agree written access terms. (The Government has indicated that the “response period” could be five working days, and the “negotiation period” could be 15 working days, which are short time frames.) Once access terms have been agreed, the parties will jointly notify the Central Arbitration
Committee (CAC) and proceed with the access.
If the employer fails to respond to the access request, or if the terms of an access
agreement are not concluded before the end of the negotiation period, the union can make
an application directly to the CAC which will have the power to order and enforce access
arrangements and to issue financial penalties for non-compliance.
A duty to inform employees of their right to join a union
From October 2026, employers will have a new legal duty to actively inform employees of their right to join a trade union. This will likely be in a written statement as part of starting new employment.
The shift from ‘employees have the right’ to join a trade union to ‘employers must tell them they have the right’ is meaningful. HR teams need to decide where this information will sit
– contracts, onboarding materials, or standalone documentation – and update accordingly.
The bigger picture
These two changes do not operate in isolation. Together, they are part of a deliberate policy direction: reducing barriers to union organisation and increasing union visibility. The realistic consequence, over time, is more union membership and more recognition requests including in sectors that have historically been lightly unionised.
What to do now
- Audit onboarding documentation and consider where you will build in the
right-to-join notification ahead of October 2026. - Establish an internal process for handling union access requests before
you receive one. - Brief managers on what they should say when employees raise questions
about union membership. - Review your employee relations baseline. Unions gain traction where
employees feel unheard. - Download Industrial Action changes guide here.
Collective redundancy consultation: “proposing to dismiss” arise?
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The EAT held in Ellard & Ors v Alliance Transport Technologies Ltd that an employer,
that entered into administration, had been proposing to dismiss as redundant 20 or more employees within a 90 day period, such that it ought to have conducted collective consultation, and the affected employees were entitled to a protective award.
Facts: The key issue was whether the employer was “proposing to dismiss” 20 or more employees within a 90-day period at the relevant time. The Claimants were employed by a manufacturer with around 51 staff. The business entered administration on 2 May 2023, and, on the same day, 15 employees were dismissed as redundant. Three days later, on 5 May 2023 most of the remaining workforce was dismissed when the last prospective buyer withdrew.
The tribunal awarded a protective award to the employees dismissed on 5 May 2023 but
not to those dismissed on 2 May 2023 (which included the Claimants), reasoning that only
15 dismissals were proposed on 2 May, so collective consultation was not triggered. The
Claimants appealed.
Outcome: The EAT allowed the appeal and substituted a decision that the Claimants
dismissed on 2 May 2023 were entitled to a protective award of the same amount as those who were dismissed on 5 May 2023 and that the tribunal had applied the wrong legal test.
The key question was not whether there was a fixed, certain proposal at a set point in
time, but whether, during the relevant time, the employer was proposing to dismiss 20 or
more employees within a 90 day period.
As at 2 May 2023, when the administrators were appointed and the Claimants were
dismissed, it was very likely that the business would close if a sale to the one remaining
interested parties could not be achieved. Therefore there was a fixed, clear, albeit
provisional intention to dismiss as redundant more than 20 employees within a 90 day
period. There had been no consultation as required under TULRCA, and the claimants
were entitled to a protective award.
Takeaway: Failure to comply with collective consultation requirements can result in
significant liability as from April 2026, the maximum protective award has increased to 180 days’ pay from 90 days per affected employee under the Employment Rights Act 2025.
Practical implications for HR
Employers should reassess when consultation obligations arise. Key considerations
include:
- Monitor when redundancy becomes a realistic outcome, not just a confirmed
decision - Evaluate the likelihood of alternative options (e.g. sale or restructure)
- Initiate consultation at an earlier, provisional stage where large-scale redundancies are foreseeable
A cautious, early approach to collective consultation will be essential to mitigate risk. For essential guidance for HR teams, catch up on demand.
The need to construct a ‘discrimination-free’ world when using post discrimination conduct to assess discrimination compensation
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In the recent case of KJ v British Council, the Employment Appeal Tribunal revisited the
important issue of how to assess losses flowing from discrimination, particularly where the employee’s later actions, where influenced by the employer’s previous discriminatory conduct.
Facts: The Claimant, based in Morocco, succeeded in claims of sex discrimination,
harassment and unfair dismissal following a poorly handled investigation and grievance
into stalking and harassment by a senior colleague. The compensation to be awarded had yet to be determined, however the Tribunal said that any award should be reduced by 35% to reflect that the Claimant would have left her role anyway (including job applications and engagement with a head-hunter).
Law: However, the EAT overturned that reduction, finding that the Tribunal had misapplied Chagger v Abbey National. It confirmed that, when assessing financial loss in discrimination claims, tribunals must consider what would have happened if the unlawful treatment had not occurred. This involves constructing a “what if” scenario in which the discrimination is removed entirely.
It is key to scrutinise post-discrimination conduct. If an employee’s actions, such as
exploring other roles, may have been influenced or shaped by the discriminatory
treatment, they cannot be relied upon to reduce compensation. The correct approach is to ask what the employee would have done in a world where none of the discrimination had taken place.
Key takeaways for HR:
- Causation is not straightforward: Actions taken by an employee after
discrimination may still be part of the causal chain. - Document carefully: If arguing for reduced compensation, employers must be able to show that the employee’s actions were independent of the discrimination.
- Avoid assumptions: Job searching does not automatically mean an employee would have left anyway.
This case is a reminder that distinguishing between the consequences of discrimination
and independent employee decisions is rarely clear cut. It also highlights that how an
employer responds to a complaint is not a separate issue. A poor or biased grievance
process can form part of an ongoing course of discriminatory conduct, potentially
extending time limits and increasing overall liability.
Employment Rights Act 2025: Trade Union change non-unionised employers need to have on their radar
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo.
The Employment Rights Act 2025 has already made significant changes to the Trade
Union rights , but there are two further incoming trade union reforms due to come into effect this October 2026:
- statutory right of access and
- a duty to inform employees of
their right to join a union.
A statutory right of access
From October 2026, trade unions will have a statutory right to request access to workplaces for a broad range of “access purposes” (i.e. to meet, support, represent, recruit and organise workers – whether or not they are members of a trade union). The actual organisation of industrial action has be expressly excluded from the permitted access
purposes but this new right of access is a unique and significant development for all employers.
Once the new rules are in force, if a union wants to request access to a workplace, it will need to give the employers an “access request” in a prescribed manner (we expect a template to be provided in due course).
“Access” will cover both physical and digital access to the workplace so this could include
email or webinars. Before the response period ends the employer may issue a “response notice” where they can either agree or object to the request (in whole or in part). If the employer agrees, a “negotiation period” will follow, during which the parties will agree written access terms. (The Government has indicated that the “response period” could be five working days, and the “negotiation period” could be 15 working days, which are short time frames.) Once access terms have been agreed, the parties will jointly notify the Central Arbitration
Committee (CAC) and proceed with the access.
If the employer fails to respond to the access request, or if the terms of an access
agreement are not concluded before the end of the negotiation period, the union can make
an application directly to the CAC which will have the power to order and enforce access
arrangements and to issue financial penalties for non-compliance.
A duty to inform employees of their right to join a union
From October 2026, employers will have a new legal duty to actively inform employees of their right to join a trade union. This will likely be in a written statement as part of starting new employment.
The shift from ‘employees have the right’ to join a trade union to ‘employers must tell them they have the right’ is meaningful. HR teams need to decide where this information will sit
– contracts, onboarding materials, or standalone documentation – and update accordingly.
The bigger picture
These two changes do not operate in isolation. Together, they are part of a deliberate policy direction: reducing barriers to union organisation and increasing union visibility. The realistic consequence, over time, is more union membership and more recognition requests including in sectors that have historically been lightly unionised.
What to do now
- Audit onboarding documentation and consider where you will build in the
right-to-join notification ahead of October 2026. - Establish an internal process for handling union access requests before
you receive one. - Brief managers on what they should say when employees raise questions
about union membership. - Review your employee relations baseline. Unions gain traction where
employees feel unheard. - Download Industrial Action changes guide here.
Employment Rights Act 2025: Trade Union change non-unionised employers need to have on their radar
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo.
The Employment Rights Act 2025 has already made significant changes to the Trade
Union rights , but there are two further incoming trade union reforms due to come into effect this October 2026:
- statutory right of access and
- a duty to inform employees of
their right to join a union.
A statutory right of access
From October 2026, trade unions will have a statutory right to request access to workplaces for a broad range of “access purposes” (i.e. to meet, support, represent, recruit and organise workers – whether or not they are members of a trade union). The actual organisation of industrial action has be expressly excluded from the permitted access
purposes but this new right of access is a unique and significant development for all employers.
Once the new rules are in force, if a union wants to request access to a workplace, it will need to give the employers an “access request” in a prescribed manner (we expect a template to be provided in due course).
“Access” will cover both physical and digital access to the workplace so this could include
email or webinars. Before the response period ends the employer may issue a “response notice” where they can either agree or object to the request (in whole or in part). If the employer agrees, a “negotiation period” will follow, during which the parties will agree written access terms. (The Government has indicated that the “response period” could be five working days, and the “negotiation period” could be 15 working days, which are short time frames.) Once access terms have been agreed, the parties will jointly notify the Central Arbitration
Committee (CAC) and proceed with the access.
If the employer fails to respond to the access request, or if the terms of an access
agreement are not concluded before the end of the negotiation period, the union can make
an application directly to the CAC which will have the power to order and enforce access
arrangements and to issue financial penalties for non-compliance.
A duty to inform employees of their right to join a union
From October 2026, employers will have a new legal duty to actively inform employees of their right to join a trade union. This will likely be in a written statement as part of starting new employment.
The shift from ‘employees have the right’ to join a trade union to ‘employers must tell them they have the right’ is meaningful. HR teams need to decide where this information will sit
– contracts, onboarding materials, or standalone documentation – and update accordingly.
The bigger picture
These two changes do not operate in isolation. Together, they are part of a deliberate policy direction: reducing barriers to union organisation and increasing union visibility. The realistic consequence, over time, is more union membership and more recognition requests including in sectors that have historically been lightly unionised.
What to do now
- Audit onboarding documentation and consider where you will build in the
right-to-join notification ahead of October 2026. - Establish an internal process for handling union access requests before
you receive one. - Brief managers on what they should say when employees raise questions
about union membership. - Review your employee relations baseline. Unions gain traction where
employees feel unheard. - Download Industrial Action changes guide here.
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