We are well and truly underway with implementation of the Employment Rights Act 2025 (“ERA 2025”) and October brings the next tranche of changes that employers will need to be ready for.
At a Glance
Expected from 1 October 2026:
- Extending the time limits to bring claims in the Employment Tribunal
Expected from 30 October 2026:
- A new duty to give workers a written statement informing them of their right to join a trade union
- A new right of trade union access to the workplace
- Strengthening of the unfair practice regime in recognition applications
- Enhanced facilities for trade union officials and learning representatives
- A new right to time off and facilities for equality representatives
- Enhanced protection for taking part in industrial action
- An enhanced duty to take ‘all reasonable steps’ to prevent sexual harassment
- A new duty to protect against third party harassment
Extending Tribunal Time Limits
From 1 October, it is expected that the time limit for most tribunal claims will increase from three to six months.
This will extend the time available for disputes to be resolved before proceedings are commenced, however, it creates greater uncertainty for employers and potential evidential issues including lack of witnesses (due to staff turnover), poorer witness recollection of events and longer document retention requirements.
It is expected that the six-month time limit will only apply where the relevant date (e.g. the date of the less favourable treatment/detriment etc) falls on or after 1 October 2026. If there is a series of acts, the date will apply to the last of these in the series. Therefore, claims based on events arising before 1 October 2026 should still remain subject to the previous three month time limit.
Employers will need to consider their document retention policies, their processes for capturing witness evidence promptly when a claim is anticipated and may want to consider retaining contact details for leavers (and inserting post-termination assistance clauses into contracts re litigation) to assist with witness availability.
Written Statement of Right to Join a Union
Employers will need to give workers a written statement advising that they have the right to join a trade union. This statement must be given at the same time as the Section 1 statement and at other prescribed times which are yet to be confirmed. Failure to provide this will be treated in the same way as a failure to provide a Section 1 statement. Regulations are expected which will set out the detail of this right including what information has to be included and how this should be provided.
Employers will need to review the regulations once issued and ensure this written statement is provided in line with these.
Right of Access
New provisions will come into effect enabling trade unions and employers to enter into access agreements’ whereby the union can access the employer’s workplace (physically and virtually). The government has created a final draft Code of Practice covering how the right will work in practice which has been laid before Parliament.
Employers will need to consider their current employee representative arrangements and whether an approach from a union is likely. They will need to consider practical arrangements for access in advance given the tight timescales involved with requests for access (for example employers only have 15 working days to respond to a request for access and 25 working days to negotiate) and should also consider whether the model terms issued by the CAC are workable as these are likely to be used by unions initially, and considered reasonable by the CAC.
Unfair Practices
Unfair practices refers to conduct by the union or employer which is intended to influence the outcome of a recognition ballot and may affect how workers vote. Measures are already in place to seek to address this but the ERA 2025 amends and extends these including by applying a cap to the number of workers in a bargaining unit during the recognition process, extending the current Code of Practice on unfair practices so that it applies throughout the entire recognition process (not just the ballot process) and inserting a new list of unfair practices.
Employers will need to keep on top of the new obligations and provide training to those likely to be involved in this process to ensure they do not take action that would fall foul of this.
October brings the next tranche of changes that employers will need to be ready for.
Facilities/Time Off
Currently trade union officials and learning representatives of an independent trade union recognised by the employer are entitled to paid time off to carry out their duties. The ERA 2025 extends this to ensure that they are also provided with such accommodation and other facilities as is reasonable in relation to this.
Further equality representatives of a trade union do not currently have any right to time off or facilities and so the ERA 2025 creates a new right to better align to the above.
Employers will need to familiarise themselves with the detail of these requirements so they understand when the right applies and what needs to be provided. Training will also need to be provided to those likely to receive such requests.
Enhanced protection for taking part in industrial action
The Supreme Court recently held that there is currently no protection against detriments, short of dismissal, on the grounds of protected industrial action. As such, the ERA 2025 is amending existing legislation to include this.
Employers will need to ensure they are aware of the new obligations and that training is provided as appropriate.
Enhanced duty to take ‘all reasonable steps’ to prevent sexual harassment
Employers are currently required to take reasonable steps to prevent sexual harassment. If they do not, compensation in any successful sexual harassment claim can be uplifted by up to 25%. The ERA 2025 amends this requirement to ‘all reasonable steps’. Whilst this may seem like a small change, it makes the requirement much more onerous for employers as, even if they have taken reasonable steps, if one further reasonable step can be identified, they will not have satisfied this test. The government has the power to set out in regulations what will be regarded as reasonable steps an employer should take but this will be created after the duty has already come into force.
Employers should review their existing sexual harassment risk assessments to ensure these cover all reasonable steps envisaged and that any such steps are properly implemented and evidenced.
New duty to protect against third party harassment
The ERA 2025 creates a new duty on employers not to permit third parties harassing their employees. Employers will be liable if the harassment occurs in the course of the employee’s employment and the employer failed to take all reasonable steps to prevent the third party from harassing their employee. This will cover any third party (i.e. not the employer or its employees) including contractors, customers and suppliers.
This will be onerous for some employers, especially those whose employees work in customer facing roles. However, the government has confirmed that the expectations on employers in terms of preventing third party harassment will be lower than those relating to their own employees.
Employers should consider creating/reviewing harassment risk assessments to ensure they cover third party risks. If risks are identified, an action plan should be created to address these. Training and policies may also need to be updated to ensure third party harassment is covered and contracts with third parties considered to see if these can be amended to include further obligations and commitments on third parties to help reduce the risks.
Our employment lawyers are on hand to guide you through the changes coming in the ERA 2025, please do not hesitate to get in contact.
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