Employment Edit: 20 November 2025

Legal Updates

Ping pong persists

The ping pong of the Employment Rights Bill between the House of Commons and the House of Lords continues, with several important points of disagreement remaining unresolved. Earlier this week, the House of Lords again voted in favour of a number of changes to the Bill, including amendments which would:

• introduce a six-month qualifying period for unfair dismissal claims, rather than making unfair dismissal a ‘day one’ right;
• add a mechanism allowing a worker to opt out of the right to a guaranteed hours contract; and
• retain the existing turnout threshold for industrial action ballots (which requires at least 50% of those entitled to vote in a ballot to have done so).

Whilst each of these points is significant, the most debated topic seems to be whether to retain any qualifying period for unfair dismissal claims. The government is holding firm that there should be no qualifying period, in line with its manifesto commitment to introduce basic ‘day one’ rights (including unfair dismissal) for all employees. On the other hand, opponents to this reform have raised concerns about the potential impact on employer confidence to hire untested individuals (particularly young people) or potential hires that employers may perceive as riskier (such as individuals with unspent criminal convictions).

The Bill will now return to the House of Commons for reconsideration. It is unclear at this stage how the impasse will be resolved or when the Bill may receive royal assent. We will continue to keep you posted on all key Employment Rights Bill developments in Employment Edit.

On the topic of ERB reforms, the government yesterday launched a consultation into a draft code of practice on electronic and workplace balloting. The consultation, which closes on 28 January 2026, seeks views on the draft code of practice which includes required standards for e-balloting and the factors to be considered when choosing a voting method.

ACAS early conciliation

The ACAS early conciliation period, the window within which ACAS tries to facilitate settlement of a potential employment tribunal dispute, is set to double from 1 December 2025. For early conciliation notifications received on or after 1 December 2025, the new early conciliation period will be 12 weeks (up from 6 weeks).

The conciliation period starts once a person notifies ACAS that they are considering bringing an employment tribunal claim. If the parties are open to settlement, ACAS will then explore with them how to resolve the dispute without going to tribunal. The extension of the conciliation period comes against the backdrop of increasing demand for ACAS’ services, with some reports suggesting that ACAS has been struggling to start conciliation within the current 6-week period.

The hope is that the extension will allow ACAS more time to conciliate and to therefore resolve more disputes. However, there will also be a knock-on consequence for employment tribunal claims that are not resolved as it will increase the delay between the date of the dismissal or other issue complained about and the claim being issued (as a period of early conciliation ordinarily stops the clock on the time limit for bringing a claim). Coupled with the extension of employment tribunal time limits from 3 to 6 months proposed under the Employment Rights Bill, this reform means that we are likely to continue to see claims taking longer to get to a final hearing. This means that a claim can loom over those involved (particularly witnesses) for longer and might impact on the ability of witnesses to remember what happened. These are factors that respondents will need to take into account when faced with claims, and will need to put appropriate steps in place to support witnesses.

Whistleblowing detriment

Employees can bring whistleblowing detriment claims that relate to their dismissal, according to an important decision in the Court of Appeal. However, the Court made it clear that it only reached this conclusion because it was bound by the earlier decision of Timis v Osipov. The Court’s own interpretation in its judgment last week was that whistleblowing detriment claims raised by employees cannot relate to dismissal – in its view, Parliament deliberately designed separate tests and remedies for whistleblowing claims relating to unfair dismissal and non-dismissal detriment.
 
In each of the joined appeals, the claimants sought to add whistleblowing detriment claims relating to dismissal to existing whistleblowing unfair dismissals claims that they had already brought. As it was bound by Osipov, the Court of Appeal held that the claimants should be allowed to amend their claims to add the whistleblowing detriment claims relating to their dismissal.
 
The Court said that, had it been able to depart from Osipov, it would have done so. The inconsistency between the binding legal position and the Court of Appeal’s interpretation of the legislation in this case can only be addressed by the Supreme Court or by a change to the legislation. Unless or until that happens, employees are able to bring whistleblowing detriment claims that relate to dismissal. Employees are therefore able to bring an automatic unfair dismissal claim against their employer together with a whistleblowing detriment claim relating to their dismissal against the dismissing manager(s) and the employer. This further emphasises the importance of employers and decision-makers clearly documenting and evidencing the reason for an employee’s dismissal in order to be able to combat any allegation that the real reason was because they blew the whistle.
 
(Rice v Wicked Vision Ltd and Barton Turns Developments Ltd v Treadwell)

Carers’ leave

In Next Steps to Make Work Pay, the government indicated that it would review the implementation of carers’ leave (which was first introduced in April 2024) and consider whether there is a need to change the current approach, including the benefits of introducing paid carers’ leave. That review has now been launched.