Employment Edit: 22 January 2026

Legal Updates

Collective consultation

Identifying when collective consultation is triggered is going to be all the more important from April this year, when the maximum award for a failure to collectively consult will increase from 90 days’ to 180 days’ uncapped pay. It can be particularly difficult to assess when the obligation to consult is triggered where redundancies are staggered or are proposed in batches. The EAT has thankfully provided some much-needed clarity on this topic in the recent case of Micro Focus Ltd v Mildenhall.

The EAT noted that the trigger for collective consultation looks at what the employer was proposing at the relevant time for the future, not how many dismissals were in fact effected or proposed when matters are viewed retrospectively. It observed that it cannot simply be deduced from the fact that 20 or more dismissals actually occurred within any period of 90 days that the employer, at some stage, was or must have been proposing all those dismissals. Given that the focus under the test is what is proposed, collective consultation can be triggered even if fewer than 20 employees are actually dismissed or if the proposed dismissals do not ultimately occur within the envisaged period of 90 days or less. It did warn that tribunals will be astute to see through artificial divisions of dismissals into batches, deliberate delaying or staggering of dismissals.

In his latest blog post, Huw Cooke considers the EAT’s findings in Micro Focus and what they mean for employers. In particular, Huw notes that, in order to mitigate the risk of a tribunal concluding that there has been manipulation or deliberate staggering of proposed dismissals to avoid collective consultation, an employer will need a clear explanation as to why a subsequent batch of proposed redundancies arose independently (and could not have been foreseen) from a previous batch.

‘Day one’ family leave rights

Commencement regulations were published last week which confirm that paternity leave and unpaid parental leave will both become ‘day one’ rights from 6 April 2026. From that date, the qualifying periods of 26 weeks (for paternity leave) and one year (for unpaid parental leave) will be removed. In addition, the rule that means paternity leave entitlement is lost once the employee takes shared parental leave will be removed, meaning that eligible fathers and partners will have more flexibility over when they take the different types of leave.

The amended paternity leave rules will apply to parents of children born or placed for adoption on or after 6 April, with transitional arrangements covering parents of babies who are due after the new rules come into effect but are born earlier. The amended parental leave rules will apply to periods of parental leave that start on or after 6 April 2026 – so a parent with less than one year’s service will be able to take unpaid parental leave from 6 April 2026, subject to the usual notification and eligibility requirements. 

There is relatively limited time to prepare for these reforms and quite a lot to do, including updating your family leave policies and payroll and time & attendance processes. If you offer enhanced paternity leave or pay, there are various additional factors that you will need to consider – remember that the qualifying period for statutory paternity pay is not being removed, so employees will not be entitled to statutory paternity pay until they have obtained 26 weeks’ qualifying service. As your organisation is preparing for these and other ERA reforms, don’t forget to check out our new ERA hub or get in touch with your usual Burges Salmon contact.

In other ERA-related news, earlier this week Acas launched consultation into draft updates to its Code of Practice on time off for trade union duties and activities. The updates reflect extended rights for trade union officials and equality representatives to take time off for various types of union activity. The consultation will close on 17 March 2026, with the extended rights to due come into force in October this year.  

Single sex facilities

In a judgment published last week, an employment tribunal considered whether part of an employer’s Transition in the Workplace policy could amount to indirect discrimination or harassment.

The claimants work as nurses for an NHS Trust and are required to change into and out of their uniforms in changing facilities provided by the Trust. The Trust’s policy permitted trans staff to use the changing rooms of their choice. After a trans colleague (who is a biological male who identifies as female) began using the female changing rooms, the claimants raised concerns and ultimately brought tribunal claims alleging indirect discrimination and harassment related to sex.

Some of the key findings from the tribunal’s judgment are:

• The Trust’s conduct in effectively requiring the claimants to share a changing room with a biological male trans woman amounted to harassment related to sex.
• The Trust’s failure to take seriously the claimants’ concerns regarding the policy also amounted to harassment related to sex.
• The application of the Trust’s policy amounted to indirect sex discrimination. In finding that the policy placed women at a disadvantage, the tribunal found that women would be more likely than men to experience feelings of distress, fear or humiliation by being required to share a communal changing room with a member of the opposite sex. In rejecting the Trust’s objective justification defence, the tribunal noted that there was no attempt by the Trust to strike any kind of balance and that no one at the Trust had spoken to the trans colleague to seek their views or ask if they were willing to use alternative facilities.
• All complaints that related to the trans colleague’s alleged conduct (both the colleague’s use of the changing rooms and their conduct when using the changing rooms) were dismissed.

As this is a first instance decision, it is not binding on other tribunals. This is a fast-developing and highly fact-sensitive area, perhaps best demonstrated by the fact that three different employment tribunals have published judgments in the last two months, each making different findings. This includes the Peggie v Fife Health Board case, which we covered in a previous edition of Edit (here).

(Hutchinson and others v County Durham and Darlington NHS Foundation Trust)