(Excluding the Employment Rights Bill which we reported on separately)

October brings significant legislative changes

October brings significant legislative changes and important case law developments. Here are the key updates employers and HR professionals need to know.

The Net Is Tightening on NDAs: New Restrictions in Force from 1st October 2025

Non-disclosure agreements (NDAs) are legal contracts that place confidentiality requirements on parties, often used to maintain the confidentiality of settlement terms. The use of NDAs has come under increasing scrutiny in recent years, with the #MeToo movement and high-profile examples of them being used to cover-up misconduct.

The current position

Currently NDAs will be void if they seek to prevent an individual from reporting a crime to the police, prevent a worker from making certain protected disclosures under whistleblowing laws, or prevent disclosure of sexual abuse, harassment or sexual misconduct in higher-education settings.

Changes from 1st October 2025

On 1st October 2025, new restrictions under the Victims and Prisoners Act 2024 came into force. These make clear in statute that non-disclosure agreements cannot be enforced insofar as they seek to prevent victims from reporting crime to the police. The changes also extend these protections to certain other disclosures, including those necessary for victims to access confidential advice and support needed to cope and recover from the impact of crime.

Lessons

• HR and legal teams need to make sure that their standard settlement wording is amended to carve out these additional disclosures.
• Review all existing NDA templates immediately.

Employer Liability for Acts of Harassment: What HR Need to Know

In AB v Grafters Ltd, an agency worker was told she was not rostered to work. A colleague offered to give her a lift home, then sexually harassed the worker in the car. The Employment Appeal Tribunal did not agree with the employment tribunal's conclusion that the harassment had not been 'in the course of employment' and sent this point back to be reconsidered.

The EAT gave helpful guidance: the words should be given a broad interpretation; an act of harassment may be done in the course of employment even if it was not done at the workplace or in working hours if there is a sufficient 'nexus or connection with work'; and whether the act is done with the employer's knowledge or approval 'does not matter'.

Lessons

• Anti-harassment policies and training must encompass any interactions between employees which have a 'connection with work'.
• Work-related social occasions and social media messaging are caught by the extended concept of 'in the course of employment'.
• The workplace may provide a harasser with a springboard to harass, even though the harassment itself took place outside of work.

Interviewer Who Appointed Employee Because She 'Vibed' With Her Did Not Discriminate

In Kalina v Digitas LBI Ltd, two applicants were interviewed for a role. Both were found appointable following competency-based assessment. The successful candidate was chosen largely because she was considered to be the 'best fit' for the team. The interviewer noted that she had 'vibed' with her at interview.

The unsuccessful candidate alleged this was discriminatory on grounds of race and disability, claiming she was not appointed because as a Russian her personality did not conform with British workplace norms, and because of her disability of anxiety and depression.

The tribunal dismissed all claims. Whilst acknowledging that caution should be exercised when taking account of such factors (because of the discrimination risk), it did not follow that selecting from two good candidates based on who was the better ‘team fit’ would be discriminatory. There has to be a role for personality in recruitment. It cannot be stripped away entirely for fear of discrimination. However, it acknowledged that caution should be exercised.

Lessons

• Have a clear recruitment policy. If 'team fit' forms part of it, make sure that it only becomes relevant some way down the recruitment exercise.
• Be aware of the risk of unconscious bias. Generally, the more people involved in the decision to appoint, the less likely it is that unconscious bias can take hold.
• Be particularly careful to make sure that 'team fit' does not stray into unlawful discrimination, especially regarding religion or belief, childcare responsibilities, or health conditions affecting social interactions.

Top Tips for Probationary Periods

A probationary period is a trial phase at the start of a new employment relationship, usually three to six months in duration. They are a useful tool for employers if used effectively.

An effective probationary period needs an effective probationary period clause

Probationary periods don't exist as a stand-alone legal concept. They only exist if they are included in the employment contract. Employers should consider including: a statement of the length; a mechanism allowing extension; a shorter notice period during probation; and a statement that full disciplinary and performance management processes will not apply.

A probationary period cannot be used to delay compliance with legal requirements

Employees have protection from discrimination from day one of employment. They also have the right to receive a statement of terms and conditions, to receive sick pay, and to accrue annual leave.

No ordinary unfair dismissal risk provided probationary period is less than two years

Employees do not accrue ordinary unfair dismissal rights until they have been employed for two years. However, discrimination claims are still possible, as are most claims for automatic unfair dismissal.

The importance of following through on probationary period terms

In Przybylska v Modus Telecom Ltd, the employer gave one week's notice a few days after the probationary period had elapsed. This was wrong and the employer had to pay the full three-month notice period. You can guard against this risk by including contractual wording that probation continues until you confirm in writing that the employee has successfully completed it.

Culture and Values

Align the onboarding and probation period. Make sure that employees are properly integrated into the workplace from a compliance and culture perspective, including training on values, important human skills like communication and team work. This will give everyone the best chance of a successful probation as well as early identification of any concerns.

Redundancy and Alternative Employment

To convert a 'potentially fair' redundancy into a 'fair' one, employers must be able to show that the situation was a genuine redundancy and that a fair process of selection and consultation was followed. One of the key requirements for fairness is that the possibility of alternative employment has been considered.

Exploring alternative employment options – a failure to adequately consider alternative employment could lead to a finding of unfair dismissal. Employers should not limit their search to similar roles – all identified alternative employment options should be placed on the table.

Considering the availability of suitable alternative employment – if an employee unreasonably refuses an offer of suitable alternative employment within the employer’s business or an associated business, then they will forfeit their right to a statutory redundancy payment. The employer has to show that the refusal was unreasonable.

Lessons

• Don't pre-judge the sorts of roles an at-risk employee might be interested in.
• The scope of the duty is larger for larger businesses and group company vacancies should be included.
• Consider all factors including skills, pay, location, working conditions and responsibility when assessing suitable alternatives.

Whistleblowing Did Not Give Employee Carte Blanche to Behave Disruptively

In Argence-Lafon v Ark Syndicate Management, the employee made protected disclosures regarding a loss claim he believed to be fraudulent. Ark investigated thoroughly and concluded that the loss was not fraudulent. The employee's view was intransigent, and he continued to state that the loss was fraudulent. His later statements were not held to be protected disclosures.

The employee was later placed under performance management and was dismissed for breakdown of trust and confidence because he would not engage with the PIP and there was a breakdown rooted in his continual claims that Ark had been complicit in fraudulent activity.

The Employment Appeal Tribunal held that the dismissal was not automatically unfair: the principal reason for the dismissal was not the disclosures themselves but the employee's continual claims of fraud once an investigation had found no fraud, and failure to engage with the PIP.

Lessons

• Whistleblower status does not make employees untouchable.
• If you have a genuine conduct issue with a whistleblower, you can still take action.
• Ensure thorough investigations are conducted and documented.
• The conduct issue can even be indirectly linked to the whistleblowing.

Why Employers Should Be Careful Before Blindly Relying on Spyware Data

In Lanuszka v Accountancy MK Services, the employer did not prohibit personal searches using company equipment during working time. Remote spyware installed on the employee's PC showed she had spent around an hour and a half, over two days, on 'personal matters' including scrolling Amazon, Very and Rightmove. She was dismissed for misconduct.

The employment tribunal found her dismissal to be unfair. The amount of time spent doom scrolling was not excessive, especially given personal use was not banned. The employer had not conducted a reasonable investigation – it had failed to look behind the data presented by the spyware package. In fact, the spyware had incorrectly categorised some work-related searches as personal use.

Lessons

• Employers should not rely blindly on data collected by monitoring software.
• Conduct your own 'human' analysis before taking action.
• Communicate clear boundaries of acceptable personal use to avoid uncertainty.
• Check the accuracy of monitoring software data before disciplinary action.

Where Restructuring Meets Redundancy: Understanding the Legal Risks

The words "redundancy" and "restructuring" carry very different connotations. It's no surprise that employers often refer to redundancies as "restructuring". While HR plays a key role in delivering messaging sensitively, it's essential not to lose sight of the legal distinctions.

Redundancy applies where there's a reduced need for employees to do a particular kind of work. "Some other substantial reason" (SOSR) might apply where a business restructure requires changes to terms and conditions.

The key difference lies in termination payments. A redundancy dismissal typically entitles the employee to a statutory redundancy payment, whereas SOSR does not.

In Packman v Fauchon, an employee's hours were reduced due to a drop in work. Even though the headcount didn't change, the dismissal was still found to be a redundancy in law.

Lessons

• Even if no roles are lost, a reduced need for work may still be redundancy.
• Mislabelling a redundancy as a restructure can risk unpaid redundancy claims.
• Collective consultation rules apply for both SOSR and redundancy if 20+ dismissals are proposed within 90 days.
• Always align your documentation and rationale with the actual legal basis for dismissal.

Other Notable Decisions

United supporter working at Manchester City stadium scores 'own goal' with football shirt. In September, the Manchester derby between City and United took place at City's Etihad stadium. An Etihad bar worker wore a United shirt to serve drinks to City fans in one of City's stands. Photos were posted on social media by disgruntled City fans who called the behaviour an 'absolute joke'. City responded swiftly by confirming that the worker had been removed from his position.

From an employment law perspective, dismissal could well be justified given the potential reputational damage and customer demand concerns. The individual was likely a temp or agency worker with no guarantee of further work beyond derby day itself.

Final Thoughts

Employment law continues to move quickly. Key themes this month include the importance of thorough investigations, the broad interpretation of 'in the course of employment' for harassment, and the need to look beyond monitoring software data when making dismissal decisions. If you would like support reviewing policies, training managers, or preparing for upcoming changes, please get in touch.

 

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