Employment Rights Act 2025 - 10 of your key questions answered

Author: Stephen Simpson

In our Employment Rights Act 2025 recap webinar, we highlighted key areas from previous sessions on the requirement to provide workers with a statement of the right to join a trade union; the expanded duty to take all reasonable steps to prevent sexual harassment; and aligning probation processes as a result of the reduction of the unfair dismissal qualifying period. Here we tackle 10 key recurring questions that came in during the webinar.

Trade unions

1. When do we expect to get the mandatory wording of the written statement setting out the right to join a trade union and a timeline of when the requirement will be introduced?

We are awaiting the publication of regulations (secondary legislation) that will implement s.58 (on the Right to statement of trade union rights) of the Employment Rights Act 2025.

The Government has already indicated in its public consultation - Make work pay: Duty to inform workers of right to join a trade union - a preference for a standard template statement on GOV.UK that employers could lift and issue to workers. The employer would be required only to add workplace-specific details before distributing the statement to staff.

These fine details will be confirmed any day now in regulations and the outcome of the public consultation.

However, we do now have confirmation from the Government's updated Employment Rights Act: timeline that the regulations will come into effect on 30 October 2026.

2. Will referencing the right to join a trade union in our contracts of employment be sufficient for the new legislation? Alternatively, will it be acceptable to include a reference to the right to join a trade union in a non-contractual handbook?

The answer to this is still to be confirmed, in regulations and the outcome of the public consultation, which are expected imminently.

If the Government goes with its preferred "direct delivery" option for new starters in the public consultation, employers will be required to provide the statement on the right to join a trade union directly to new workers, alongside the written statement of terms and conditions of employment, which must already be provided at the start of employment.

"Indirect delivery", such as a reference in a contract of employment or staff handbook, which may or may not be read by the new starter when they join, is not expected to be sufficient under the new legislation.

If the Government goes with its preferred option for existing staff in the public consultation, either "direct delivery" or "indirect delivery" is expected to be sufficient. This means that a reference in a document to which staff have continuous access - such as a contract or staff handbook - would be enough for existing staff. (Whether this will go alongside a requirement to provide an annual reminder for existing staff is still to be confirmed.)

3. We are a small employer in a traditionally non-unionised sector and do not recognise any unions. Does the requirement to provide a written statement of the right to join a trade union apply to us?

The requirement to provide a written statement setting out the right to join a trade union applies to both unionised and non-unionised employers.

In other words, applicability of this new requirement does not depend on whether your employer recognises any trade unions.

The requirement to provide a written statement applies to employers of whatever size: there is no small employer exemption.

Harassment

4. The Employment Rights Act 2025 is strengthening the duty requiring employers to take steps to prevent sexual harassment. Instead of being required to take "reasonable steps", we will be required to take "all reasonable steps". What does that mean in practice for us?

There is currently no definitive list in legislation as to what counts as "all reasonable steps" to prevent sexual harassment. However, employers need to remember that they are not starting from a point of zero.

There is already detailed Equality and Human Rights Commission guidance on what counts as "reasonable steps" that your organisation needs to take. This remains a good starting point for employers, even though the guidance is still to be updated for the 30 October 2026 changes.

While the Government has promised further Regulations specifying what steps are "reasonable", these are not expected to come into force until 2027. Employers need to review their approach in advance of the strengthened duty taking effect on 30 October 2026, meaning that waiting for the 2027 Regulations is not an option.

Our model Anti-sexual harassment policy has been updated to include examples of measures that could be taken by an employer to comply with this expanded preventative duty - see the Our commitment to you section of the policy. These measures include:

• training for new starters;
• recurring training for existing staff;
• additional training for line managers to help them to understand their responsibilities;
• anti-harassment initiatives, such as awareness-raising drives and workshops;
• monitoring of workplace culture, for example via anonymous surveys and exit interviews;
• clear communication to staff and third parties of your organisation's anti-sexual harassment stance; and
• regular sexual harassment risk assessments.

There is no "one-size-fits-all" approach. What counts as "all reasonable steps" will depend on, among other things:

• your organisation's size and resources;
• the nature of the working environment; and
• the risks present in your organisation's workplace.

5. Will we now be required to provide annual training on harassment for new starters, existing employees and line managers?

There is no strict requirement for employers to conduct training for these groups every year. As Equality and Human Rights Commission guidance states: "What is reasonable will vary from employer to employer. The law does not list specific steps an employer must take."

However, it is inescapable for employers that a regular programme of training, together with evidence that the training is up to date and staff have acknowledged that they have completed the training, is one of the strongest defences against a harassment claim.

Equality and Human Rights Commission guidance provides the following examples of training, in the context of a male-dominated sector where the risk of sexual harassment is high:

• "Setting up specific training for managers to ensure they understand what sexual harassment is, and that all reports formal and informal must be taken seriously, documented and appropriate action taken. This training includes educating managers on the firm's policies and procedures and where to get support."
• "Running refresher training for all staff, with particular emphasis on inclusion, respectful behaviour and the importance [of] all staff reporting any sexual harassment they witness."

Regular training can be very effective. However, training can go stale - for example if the training was created a long time ago and has outdated examples or incorrect law - or become a tick-box exercise, drastically reducing its effectiveness.

6. What is the scope of our liability for third-party harassment? Will liability be limited to third parties who are onsite or does it apply to any third parties with whom staff may come into contact?

The scope of third-party harassment is wide: essentially, it covers any circumstances in which an employee is harassed at work by someone who is not a co-worker.

The third party does not have to be on the employer's premises for the employer to be potentially liable, nor does the third party have to be physically there with the employee to commit third-party harassment.

For example, it is well-established that harassment can take place online, such as via posts, messages or contact on social media. Harassment can also take place during remote meetings on Teams or by leaving items displayed even if the perpetrator is not present at the time when the complainant sees it (such as via offensive graffiti or a poster).

Examples of employees at risk of third-party harassment outside the employer's premises include:

• sales staff who talk to customers or clients on the telephone or are contacted by customers via emails or online messaging;
• catering and bar staff who provide services on the customer's premises or at neutral venues such as hotels or conference centres;
• employees who visit clients or service users at home, for example visiting carers, delivery workers and maintenance/utilities workers; and
• construction workers who spend their working hours out on building sites.

7. What penalties can we expect if a third party harasses an employee and the employee takes legal action against the employer?

The employee's route is to bring a harassment claim in the employment tribunal. The important thing to remember is that there is no upper limit on the amount of compensation that a tribunal can award if it upholds a discrimination claim.

Awards can include compensation for financial losses, such as future lost earnings and pension contributions, which often accounts for most of a discrimination award. Compensation for non-financial losses, including for injury to feelings, can also push up the award.

Your organisation could also be liable for negligence if the employee suffered mental and/or physical injury because of harassment by a third party that the employer could reasonably have foreseen and prevented or reduced.

In cases involving alleged harassment, including third-party harassment, it may be that the employee has resigned in response. This is likely to lead to an additional constructive dismissal claim against your organisation, where the claimant argues that they resigned in response to the employer's failure to protect them against third-party harassment.

Probationary periods

8. In light of the reduction of the unfair dismissal qualifying period from two years to six months, we are currently reviewing our six-month probationary period. What length of probationary period do you recommend?

Employers that are reviewing their probationary period may decide to use a shorter period, to avoid new employees gaining the right to claim unfair dismissal before the end of their probation. Employers choosing to do this should select a period (of less than six months) that still enables them to:

• carry out the necessary procedures where a probationer is not meeting the required standards; and
• if necessary, give the required notice to terminate employment before they reach six months' service.

What shortened probationary periods are employers opting for? According to Brightmine research, the majority of employers (around 60% of respondents) previously had a six-month probationary period. Some are now changing to either three or four months, which provides organisation with an indication of the direction of travel.

Employers have also told us that are also making changes to their ability to extend probationary periods. For example, some are opting for a four-month probationary period with the possibility of extending that probationary period for one month.

This highlights that sensible employers are ensuring that the total length of probation, any extension and the notice period (in cases of dismissal) can all be carried out within the six-month window before an employee reaches the unfair dismissal qualifying period.

9. We have some underperforming newer staff who are on a six-month probationary period that is now due to end in January or February 2027. Are we safe if we cut short their probationary period and dismiss them before the end of 2026?

If a probationer's performance is proving to be unsatisfactory during the probationary period, the employer can take the necessary steps to dismiss them without waiting for the probationary period to come to an end.

However, the employer should ensure that it follows any contractual disciplinary procedure in place. This includes giving the employee the required period of contractual or statutory notice, whichever is the greater.

Employers need to remember that the risk remains of a discrimination claim, which has no qualifying period, or automatically unfair dismissal, which also has no qualifying period in most cases.

Employers need to be particularly vigilant about the potential for pregnancy and maternity discrimination and disability discrimination. For example, has pregnancy-related ill health or absence hampered a probationer's progress? Does the probationer have a disability that requires reasonable adjustments to be made to their probationary period?

If employers are firefighting probation problems now, are there underlying issues that need to be tackled in a wider review? If so, now is the time for employers to do so.

General

10. What three things would you recommend having in place before the next batch of Employment Rights Act 2025 changes?

In advance of 30 October 2026, we recommend that employers:

• Look out for the Government's standard template statement on the right to join a trade union that can be lifted and the final details of when and how employers will have to provide the information to new starters and existing staff. Once you have this information, come up with a plan as to where you are going to place the written statement of the right to join a trade union in new starters' onboarding packs and communications for existing staff.
• Carry out a fresh sexual harassment risk assessment, in advance of the expanded duty to take all reasonable steps to prevent sexual harassment. This is particularly important if your organisation has not done so since the last changes to sexual harassment legislation in October 2024.
• Ensure that watertight probationary policies and processes are in place and that line managers are trained to measure the performance of new recruits.