Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Employment Rights Bill: September 2025 Status
The Employment Rights Bill (ERB) remains on track to become the Government’s flagship reform package, but political turbulence and the rejection of House of Lords amendments mean employers should be prepared for change arriving in stages. Angela Rayner’s departure, together with that of Justin Madders, has created uncertainty over the Bill’s stewardship, but the Government has made clear it intends to drive the legislation through broadly in its current form.
The Bill completed its final passage through the House of Lords earlier this month. Peers had made a number of amendments designed to soften the impact of the reforms, including retaining a six-month qualifying period for unfair dismissal and watering down obligations around guaranteed hours. These changes were rejected in the Commons on 15 September, with ministers insisting that key commitments, such as day-one unfair dismissal rights, will remain intact. This effectively sets the stage for the usual round of “ping pong” between the Houses, but the Government has the majority to force the Bill through.
The expectation is that the Lords will ultimately accept the Commons’ position rather than block a flagship piece of employment reform.
With Royal Assent still anticipated before the end of 2025, attention now turns to implementation. The Government’s own roadmap, published in July, confirms that many reforms will not take effect immediately. Harassment provisions, the restrictions on fire and re-hire, and new protections for families are timetabled for 2026 and 2027. Other provisions, such as the ban on certain non-disclosure agreement clauses and the changes to Statutory Sick Pay, may come in sooner but precise dates have yet to be confirmed.
The political question is whether the departure of Rayner and Madders will alter the order or pace of implementation. So far, ministers have repeated the commitment to deliver the reforms in full. However, there is speculation that the absence of two high-profile champions of the Bill may mean that some elements slip further back in the calendar or are subject to additional consultation before regulations are laid. Employers cannot assume that every element will land exactly as first set out, but nor should they assume that the Government will back away from its central promises. The most likely approach will be a staged rollout over the next two years.
Employer Takeaways
For UK employers, the immediate task is to track the Bill’s final passage and ensure internal stakeholders are briefed on the direction of travel. HR and legal teams should start stress-testing current contracts and policies against the main reforms. Key areas to focus on include preparing for day-one unfair dismissal rights, revisiting grievance and dismissal processes, reviewing contractual variation clauses in light of the fire and re-hire restrictions and assessing how NDAs are used in settlement agreements.
Employers should also review how harassment is prevented and documented, given the move from a reasonable steps defence to a positive duty to take all reasonable steps.
Even if many of the reforms are more than a year away, planning now will reduce compliance risk and cost later. Employers who wait until regulations are published may struggle to implement the necessary changes quickly. The current position is that the ERB will receive Royal Assent before year end and the first wave of changes will arrive in 2026. The detail of secondary legislation will determine the full impact, but the strategic direction is fixed. Employers should assume these reforms are happening and prepare accordingly.
Read our comprehensive guide to the Employment Rights Bill here >>
Commission Clauses
Saul & Co v Rashbrook
Mr Billy Rashbrook was employed as a solicitor by Raymond Saul & Co LLP under a contract that included a commission scheme. The clause provided that in each commission year he would be entitled to 20 per cent of profit costs invoiced by him once those invoices exceeded three times his salary. The contract also made clear that commission was only payable in respect of work “carried out by the Employee whilst acting as a solicitor to the Company.” A dispute arose when Mr Rashbrook argued that the calculation should be based on all invoices issued on his files, regardless of whether colleagues or supervisors had contributed to the work. The employment tribunal accepted his interpretation, finding that the wording entitled him to commission on the full invoiced amounts. The tribunal concluded he had reached the threshold and ordered payment for unlawful deduction from wages.
The employer appealed to the Employment Appeal Tribunal. On 29 July 2025, Deputy High Court Judge Andrew Burns KC allowed the appeal and dismissed the claim. The EAT held that contractual wording must be given its natural and ordinary meaning, interpreted neutrally and without bias. The express requirement that commission related to “work carried out by the Employee” meant that only Mr Rashbrook’s own work counted towards the threshold. The tribunal had erred by treating invoices as indivisible. The EAT also found it was perverse for the tribunal to conclude there were no records available to support apportionment, given the employer had produced time records and other evidence of contributions from colleagues. Applying the principle in Jafri v Lincoln College, the EAT decided there was only one possible outcome: once the amounts attributable to others were excluded, Mr Rashbrook had not met the required threshold. There was no need to remit the case and his claim failed.
Employer Takeaways
The case illustrates the importance of precise drafting in commission clauses. If commission is only to be earned on an employee’s own work, the wording must be clear and unambiguous, as it was here. Employers should also ensure that they maintain accurate time records and billing data to demonstrate who has contributed to client work. These records will be critical in defending claims and supporting any apportionment of fees.
The decision also shows that high thresholds for commission may be difficult to reach for junior staff whose work is heavily supervised or supported, but if this reflects the commercial intention it should be reflected clearly in the drafting.
Finally, the case reinforces that the EAT will not remit a case where the contractual construction leaves only one lawful outcome, meaning that employers with clear wording and adequate records are in a strong position to resist claims.
“Course of Employment”
AB v Grafters Group
The claimant, “AB,” worked via a hospitality agency and believed she was booked to serve a shift at Hereford Racecourse on 1 November 2021. She arrived late to the agency office and missed the transport the employer had arranged for workers to travel to Hereford. A male colleague (“CD”) offered her a lift, telling her she was not required to work that day and then driving her toward a golf course. During the journey he sexually harassed her: touching, showing pornographic images, asking sexual questions, attempting to place his finger in her mouth or ear, and coercing a kiss. The Employment Tribunal accepted those acts as harassment but held that they were not done “in the course of his employment,” so the employer was not liable under section 109 Equality Act 2010. The tribunal found that CD had no obligation to drive her, that the lift was not employer-arranged or approved, and that there was no expectation of informal lifts between colleagues.
On 28 August 2025 the Employment Appeal Tribunal (Judge Tayler) allowed the appeal against the ET’s decision. The EAT held that the tribunal erred by failing properly to apply the doctrine of an “extension of employment” (derived from Chief Constable of Lincolnshire Police v Stubbs) when determining whether CD’s actions could fall within his course of employment. The EAT stressed that once it is accepted the act was outside working hours or not directly part of his duties, a tribunal must go on to consider whether there is a sufficient nexus or connection with employment to bring it within course of employment. The EAT found the tribunal had ignored material facts: CD had sent sexually harassing texts while working, had in the past driven the claimant to jobs, and the claimant believed she was supposed to work that day. The ET had failed to analyze whether those factors, taken together, could render the lift and harassment an extension of employment or part of a course of conduct. The EAT also held that the tribunal’s reliance on CD’s motive or lack of employer knowledge were irrelevant factors (because under section 109(3) EA knowledge or approval by the employer is not necessary). The EAT remitted the case to the same Employment Tribunal to reconsider whether the conduct in the car could properly be treated as done in the course of employment.
Employer Takeaways
This decision reinforces that employers must be alert to the risk of liability for harassment outside formal workplace settings where there is a sufficient connection to the employment. Employers should not assume that acts beyond working hours or off premises will automatically fall outside liability. In harassment claims of this type the employer should ensure that the initial tribunal properly considers not only whether an act was at work or during duty hours, but also whether it might be an “extension of employment” or part of a continuous course of conduct.
In defending such claims, employers should gather evidence about prior conduct (texts, communications), past informal practices (colleagues offering lifts), and the context binding the parties to work. The employer’s knowledge or approval of the act is not required to trigger liability under section 109(3), so absence of approval will not always safeguard.
Finally the remittal underscores the importance of ensuring the tribunal is given full argument and findings on the nexus question rather than stopping at the “outside work” threshold.
Discrimination Claims & Time Limits
Ahmed v Capital Arches
Mr Ahmed worked for Capital Arches and alleged he had been subjected to discrimination in 2017 and 2018. He said colleagues had made unwanted comments about him not sharing Muslim practices during Ramadan. He complained to his manager about the treatment, after which he was placed on cleaning duties. He remained on those duties until going off sick in June 2021, but the placement decision itself was taken before October 2018. He did not lodge his tribunal claim until almost four years later.
The Employment Tribunal dismissed his claim as out of time, and the Employment Appeal Tribunal upheld that decision. The EAT confirmed that discrimination claims are subject to a primary limitation period of three months from the alleged act, unless the conduct can properly be treated as continuing over a period. The move to cleaning duties was a one-off act with ongoing consequences rather than a continuing discriminatory act, meaning time ran from the date of that decision. On the question of whether time should be extended, the tribunal had been entitled to refuse. The EAT stressed that it is not automatically just and equitable to extend time simply because otherwise a claimant will have no remedy. A delay of several years creates real prejudice to the employer because of fading memories and the difficulty of conducting a fair hearing. The refusal to extend time was within the tribunal’s discretion and the claim was dismissed.
Employer Takeaways
The case highlights the strict approach tribunals and the EAT take to time limits in discrimination claims. Employers facing allegations brought years after the events can rely on the argument that a one-off decision does not become continuing conduct merely because its effects carry on. The judgment also confirms that the just and equitable test will not be satisfied simply because rejecting an extension deprives the claimant of a claim. Delay of several years will usually be fatal given the prejudice to the employer in investigating and defending the matter. For employers, it is a reminder to keep clear records of complaints and management decisions at the time they occur, so that if proceedings are later issued the organisation can evidence its actions even after memories have faded.
Travel Time and the NMW
Wainwright v Cennox plc
Ms Wainwright began working in 2002 as Customer Services Director for a small business where she sometimes stood in for the managing director. In January 2018 her employment transferred under TUPE to Cennox plc, a larger organisation, and her title changed to Head of Installations. Later that year she was diagnosed with cancer and went on extended sick leave.
During her absence, a colleague was appointed to the role of Head of Installations on a permanent basis. Ms Wainwright discovered this through a LinkedIn announcement, which caused her obvious concern about her position. When she queried the appointment, HR assured her it would not affect her and suggested that the appointment was temporary. She was later issued with a revised job description and organisational chart which she believed amounted to a demotion.
She raised a grievance but resigned after delays in the grievance process. She then brought claims for disability discrimination and constructive unfair dismissal. The employment tribunal found in her favour on the section 15 Equality Act claim, holding that she had suffered unfavourable treatment arising in consequence of her disability, including the permanent appointment of her colleague during her sick leave, the announcement made to her team without her involvement, her removal from the organisational chart and the misleading information she was given about the appointment being temporary. However, the tribunal rejected her claim for constructive dismissal.
Ms Wainwright appealed the constructive dismissal finding. The Employment Appeal Tribunal held that the tribunal had misapplied the law by failing to ask whether the discrimination itself amounted to a repudiatory breach of contract. The tribunal had narrowed its focus to her dissatisfaction with the job title and the delay in the grievance process, overlooking that the discriminatory treatment could itself have been an effective cause of her resignation. The EAT confirmed that where there are multiple reasons for a resignation, discrimination need only be one effective cause to render the dismissal discriminatory. The case was remitted to the tribunal to reconsider. It was later reported that following the remittal Ms Wainwright succeeded in her constructive dismissal claim and was awarded £1.2 million in compensation for discriminatory dismissal.
Employer Takeaways
The case underlines the risks when organisational change coincides with long-term absence. Employers should not use a period of sickness or maternity leave as an opportunity to replace or restructure the absent employee’s role without careful consideration of the impact. Decisions affecting the individual should be communicated transparently and the person should not be misled, even with good intentions, as this can amount to unfavourable treatment.
In modern workplaces, announcements will often reach employees indirectly through social media, making transparency even more important.
The case also demonstrates that where discrimination is found, it can form the basis of a constructive dismissal claim, significantly increasing the level of compensation exposure. Employers should ensure grievances are dealt with promptly and comprehensively, particularly where allegations of discrimination are in play, as delays will compound the risk of a resignation being treated as a discriminatory dismissal.
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Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
