Introduction from the editor, Gemma Sherbourne

New Year, New Employment Action Plans

By the time it became the Employment Rights Act 2025 (ERA  2025), a lot of people were already feeling ‘Employment Rights Bill Fatigue’. However, as the biggest overhaul of employment rights in 30 years starts to come into force, there are a number of important steps that employers should be considering taking now to ensure that they are prepared.

We have set out below our ‘top tips’ for employers for 2026, to enable you to put action plans into place to prepare for  the forthcoming changes:

Policy and contract review

The ERA 2025 will require a number of internal policies and procedures to be updated, including the following:

• Entitlement to paternity leave and parental leave will be a day one right from April 2026, and policies will need to be updated to reflect this.
• Sick pay policies will need to be updated from April 2026, when the requirement for three ‘waiting days’ before being eligible for statutory sick pay will be removed.
• From October 2026, employers should consider updating their harassment policies to reflect the requirement to take all reasonable steps to prevent harassment.
• Also from October 2026, whistleblowing policies should be updated as disclosures of sexual harassment become protected disclosures.
• From 2027, flexible working policies need to be updated to reflect that any refusal of a request will need to be reasonable, and the reasons will need to be set out in writing.
• Finally also from 2027, bereavement leave policies will need to be extended to cover non-parents and pregnancy loss. If employers do not have bereavement leave policies, it may be sensible to put these in place.

Procedural review

From January 2027, the length of service required to claim unfair dismissal will reduce to six months. This means that employers will need to ensure that they have robust procedures in place for reviewing and managing employees who are not meeting with expectations within the first six months of their employment. Whilst a lot of employers have probationary periods in their contracts of employment, these are often not managed robustly as there has been less of a pressing need to do so whilst the qualifying employment period for unfair dismissal claims is two years. However, going forwards these probationary periods will become all the more important.

Employers should therefore take steps now to review their contracts and policies regarding probationary periods, to ensure that they have robust procedures in place for when the change comes into effect. It would be sensible to make any relevant changes now, so that they are fully embedded into the organisation well in advance.

Strategic organisational review

From October 2026, it is anticipated that the provisions of the ERA 2025 relating to ‘fire and rehire’ are likely to come into effect. This will make it substantially harder for employers to make changes to terms relating to pay, pensions, hours of work (both times worked and number of hours) and right to time off including holidays. Any dismissal of an employee as a result of their failure to agree to such changes, or so that the employer can employ someone else on the varied terms of employment, will be automatically unfair unless the employer can demonstrate that:

• the variation was made to eliminate, prevent or significantly reduce financial difficulties which were likely in the immediate future to effect the employer’s ability to carry on the business as a going concern; and
• the employer could not have reasonably avoided the need to make the changes.

This is likely to be a significant hurdle to overcome, effectively being a requirement of imminent insolvency. That being the case, employers would be well-advised to take steps to carry out a strategic organisational review now, so that if any changes to these areas are required now, or are likely to be required within the next year, steps can be taken to put these in place now, before these provisions come into effect.

Manager training

Where changes are made to any of the areas set out above, it is vital that managers are updated and trained in line with the new policies and procedures. Managers are likely to be extremely important in ensuring that employers can demonstrate that they have taken all reasonable steps to prevent harassment, and of course managers will be the first line in ensuring that probationary periods are managed appropriately and effectively. We would therefore recommend training for managers on the following areas, as a minimum:

• New starter guidelines and managing probationary procedures
• Equal opportunities and harassment, including prevention of third-party harassment
•  Whistleblowing/speak up training
• Family friendly policy update training to ensure awareness of changes to the law
• Managing sickness absence

Further, employers would be well advised to ensure that all managers are aware of the limitations on changing terms so that they do not inadvertently find themselves on the wrong end of claims for unfair dismissal.

Duty to prevent harassment

As noted above, the law relating to prevention of harassment is changing.  At present, employers have a duty to take reasonable steps to prevent sexual harassment of employees during the course of their employment. Failure to do so can lead to a 25% uplift on any award for discrimination. 

Under the ERA 2025, the requirement is changing. Employers will be required to take all reasonable steps to prevent sexual harassment, and all reasonable steps to prevent third party harassment in relation to all protected characteristics. This is a much more onerous requirement. As a minimum, employers are likely to need to consider and implement the following:

• Consider relevant changes to terms and conditions with third party customers, service users and suppliers, to make the employer’s stance on harassment of its staff clear. In regulated industries, failure to take all reasonable steps to prevent harassment may be considered a breach of regulatory requirements and this should not therefore be taken lightly.
• Carry out risk assessments, both in terms of the ‘normal day to day’ working environment and in relation to any external sites, events and other occasions where risks may arise.
• Having completed relevant risk assessments, ensure that any risks identified are appropriately managed and mitigated against.
• Ensure training is carried out for all staff, including training for managers on how they should deal with any allegations of harassment, whether by employees or third parties.
• Update policies and procedures relating to the making and handling of relevant complaints.
• Ensure that whistleblowing policies and complaints procedures are updated.

Finally, employers should note that we are expecting additional regulations to be published specifying what should amount to ‘reasonable steps’. However, as yet, these have not been released.

Whilst this may appear to be a daunting list, Tyr’s Employment Team are more than happy to assist employers with putting these measures into place, including providing bespoke training where required. If we can be of any assistance, please do not hesitate to get in touch.

If the employment team can be of any assistance in the meantime, please do not hesitate to get in touch with Gemma at info@tyrlaw.co.uk or by calling +44 (0)113 512 1050.