Top 5 recent workplace developments – March 2026

Here is our selection of key recent employment law developments for employers, HR professionals and in-house lawyers.

1. Employment Rights Act 2025: implementation update
2. Ongoing Employment Rights Act consultations
3. National Minimum Wage: the Government has published its latest position on unpaid internships 
4. Direct discrimination: religion and belief
5. Indirect sex discrimination: when can it be justified?

1. Employment Rights Act 2025: implementation update

The next tranche of the Employment Rights Act is due to come into force on 6 April 2026, with fuller details here, we’ve set out a reminder of the new day-1 and absence related rights: 

• Statutory Sick Pay (SSP) SSP will be payable from the first day of absence and available to all eligible employees regardless of their earnings
• ‘Day 1’ Paternity Leave and unpaid Parental Leave: allowing employees to take these forms of leave from day one of employment 
• Bereaved Partners Paternity Leave: a right for bereaved fathers and partners to take up to 52 weeks of paternity leave where the mother/ primary adopter dies within the first year of the child’s life from day one of employment.

Practical point

Make sure absence policies are updated and that HR operations and payroll teams are prepared to make SSP payments from the first day of any sickness absence. Absence management procedures may need to be tightened up and HR and managers should work together to plan coverage for more employees taking paternity and parental leave.

2. Ongoing Employment Rights Act consultations

Consultation activity on new regulations implementing various aspects of the Employment Rights Act has also ramped up, with the government publishing seven consultations, which close over April and May.  They include:

• Fire and Rehire: from 2027, employers will be barred from dismissing staff to force changes to key terms such as pay, hours, holiday or pensions. These 'restricted variations' will be legally protected and any dismissal for refusing such changes, or to replace/re engage someone on altered terms for the same role, will be automatically unfair. The Government has now launched a consultation on defining what will count as a ‘restricted variation’ focussing on the changes to shift patterns, expenses and benefits.
• Trade Union Recognition Code of Practice and Electronic Balloting: a draft Code of Practice has been produced, which addresses access and unfair practices during union recognition and de-recognition processes and safeguards for electronic balloting. The changes are due to be introduced in August 2026.  
• Collective redundancy thresholds: As it stands, employers proposing to dismiss as redundant 20 or more employees “at one establishment” (or site as we’ll call it) within a 90-day period must collectively consult with appropriate representatives of those employees before making any redundancies. If they don’t, employees can claim a protective award of up to 90 days’ pay.  This means that even where an employer is planning more than 20 redundancies across multiple sites, as long as no one particular site has more than 20 redundancies, the collective consultation obligations will not be triggered.
  
  The government has committed to changing the approach on this, so that consultation would also be triggered when the total of redundancies across a multi-site employer hits a certain threshold. The government is now consulting on what that threshold should be and is considering: a) single fixed organisation-wide numbers (between 250–1,000 redundancies) which is their preferred option; and b) tiered thresholds based on organisation and the number of redundancies (between 250-750).

Practical point

Employers should consider:

• introducing a variation clause into contracts of employment now, ahead of fire and rehire restrictions coming into effect
• keeping on top of union related developments and reviewing their employee engagement measures 
• accelerating nationwide restructuring prior to the implementation of 2027 changes.

3. National Minimum Wage: the Government has published its latest position on unpaid internships 

Last year, the government published a call for evidence on unpaid internships with the stated purpose of building up a picture of unpaid work in the workplace and gathering views on unpaid work being carried out, for example internships, work trials, voluntary workers and work shadowing.

Having reviewed the responses, the government has concluded that it will tackle the issues, particularly related to ‘unpaid illegal internships’ by reviewing and expanding its guidance to ensure employers understand their obligations, crack down on unscrupulous employers via the new Fair Work Agency (due to begin operating on 7 April 2026) and issuing clearer communications.

Practical point

• Most employers are already doing this but just sure that your interns are paid at least the National Minimum Wage and that you only use voluntary workers if you are a charity, voluntary organisation, an associated fundraising body, or a statutory body, otherwise the work would attract pay.
• Remember that where an organisation takes on e.g. school age work experience students, make sure that they are truly ‘shadowing’ rather than working otherwise they will also be entitled to the National Minimum Wage.

Making Work Pay: call for evidence on unpaid internships government response

4. Direct discrimination: religion and belief

The recent case of Ngole v Touchstone Leeds highlights that a) employers cannot reject job applicants simply for holding protected beliefs they disagree with and b) that the manifestation of those beliefs and the impact of that on the employer can, in very fact specific and limited circumstances, be used to justify what would otherwise be a discriminatory dismissal.

Touchstone, a mental health charity with a strong LGBTQI+ focus, advertised for a discharge mental health support worker. Mr Ngole, a Christian applicant, disclosed his religion and interviewed well, receiving a conditional offer. When his references were weaker than expected, Touchstone carried out an online search and found media reports of his earlier dispute with Sheffield University, which had arisen from social media posts stating views such as “same sex marriage is a sin”.

Senior management felt these views conflicted with the charity’s ethos and withdrew the offer, concerned he might discriminate against LGBTQI+ service users or create reputational risk. Mr Ngole brought claims of direct discrimination, indirect discrimination and harassment. He succeeded only in arguing that the initial withdrawal of the job offer - without a chance to reassure the employer - was direct discrimination. His other direct discrimination claims (over a second interview and failing to reinstate the job offer) and his harassment claim were dismissed. He appealed.

The Employment Appeal Tribunal (EAT) found legal errors in how the Tribunal approached the refusal to reinstate the job offer and sent that issue back for reconsideration. The key question will be whether Touchstone acted because of Mr Ngole’s protected beliefs (unlawful), or because of an inappropriate manifestation of those beliefs (potentially lawful, depending on the facts) and will require a more thorough factual analysis of why Touchstone reached its decision.

Practical point

The case illustrates how difficult it can be for organisations to balance a conflict in protected beliefs.  We recommend that employers:

• Ensure recruitment decisions assess skills and values fairly and consistently.
• Do not base recruitment and employment decisions on a protected belief.
• Distinguish carefully between the belief and the manner of its expression (and how that will impact on others).
• Investigate thoroughly, seek the applicant’s input and keep records of their reasoning and how decisions have been made. 

Mr F Ngole v Touchstone Leeds 2026

5. Indirect sex discrimination: when can it be justified?

A recent case has provided useful guidance on justifying indirect discrimination. In this case, an NHS Trust had required its community nurses to work flexibly, including weekends. Mrs Dobson however had always worked days fixed around her childcare. In this particular case, requiring her to work some weekends was found to be justified and not indirectly discriminatory against women.

Mrs Dobson, a long standing part time nurse with disabled children, had previously worked fixed mid week days. The Trust issued her with notice of termination and offered re-engagement on revised terms (including weekend working) but she did not accept. She brought a claim for indirect sex discrimination and unfair dismissal and lost.  

The Employment Tribunal accepted that the provision criteria or practice applied by the Trust of requiring staff to provide weekend coverage was legitimate – so as to enable it to provide 24/7 patient care, balance workload and reduce weekend staffing costs. They also agreed that it was proportionate, noting that Mrs Dobson could have worked some weekends and no other nurses had been unable to comply. The Tribunal noted that it was “striking” that Mrs Dobson suggested no alternatives during extended discussions.

On appeal, the EAT held that Tribunals must consider disadvantage to both the wider group and the individual, and it was legitimate to factor in Mrs Dobson’s personal circumstances and inflexibility. The overall group disadvantage was at the lower end, so the Tribunal had been entitled to find the PCP justified. They also gave some guidance when looking at indirect discrimination:

• What matters is that both group and individual impact are weighed against the employer’s needs
• Helpfully, employers are not required to conduct organisation-wide monitoring of the impact of changes
• It’s always sensible to explore alternatives/reasonable compromises when imposing changes and employees who fail to make suggestions may be at a disadvantage, although employers should try address suggestions when they are put forwards.

Practical point

This case confirms that currently, an employer may be able to defend a claim of indirect discrimination where they take a pragmatic approach to imposing changes, which clearly balance legitimate service needs with an analysis of the individual and group impact.

A word of caution though – because once fire and rehire restrictions are introduced in 2027 – this type of change of shift from weekday to weekend working might well fall within the definition of a ‘restricted variation’ and therefore someone in Mrs Dobson’s position might have a claim of automatic unfair dismissal. We will know more once the fire-and-rehire consultation has closed and the regulations are published.

Mrs Gemma Dobson v North Cumbria Integrated Care NHS Foundation Trust 2026