Coming up on the ERA…the April instalment

Anyone who regularly presents on legal developments knows that there is one certainty in life – an important update will inevitably land in the hours before you're due to present. And so it came to pass yesterday as I dotted the i’s and crossed the t’s on preparations for a webinar. No, the important update was not the announcement of the series leads for Bridgerton series 5 (exciting though that news is). Rather, it was new commencement regulations confirming the next steps in relation to several key Employment Rights Act 2025 reforms.

As I made my way through the commencement regulations ahead of the webinar, it struck me that there were in fact more similarities between the legislation and a popular TV series than you may think. It had all the classic features you’d expect — in places, events unfolded exactly as we (the audience) anticipated whilst, in contrast, some strands were left unresolved, leaving us guessing as to what may happen next. There was even space for a major plot twist as well as teasers of what is to come in the next instalment. 

Here are my key takeaways from the commencement regulations (or, to give them their full title, The Employment Rights Act 2025 (Commencement No. 2 and Transitional and Saving Provisions) (Amendment) Regulations 2026). 

Stories as expected

The regulations confirmed the commencement dates for a range of reforms that the government had already indicated in its implementation roadmap would be coming into force in April 2026. The key ones being:

• Collective redundancies – From 6 April 2026, the maximum protective award that a Tribunal can award for a failure to inform and consult will be doubled. In what was perhaps a surprise move, this higher cap will apply to dismissals taking effect on or after 6 April 2026. This really underlines the importance of getting collective consultation right, including for any ongoing consultation processes that may result in dismissals that take effect on or after 6 April 2026.
• Trade union recognition – From 6 April 2026, the process that a union needs to go through to secure statutory recognition will be simplified. The regulations contain some transitional arrangements so, if your organisation is in the process of discussing recognition with a union now, it is worth double-checking which rules would apply if a formal application were made – in broad terms, the new rules will apply for applications received by the Central Arbitration Committee on or after 6 April 2026. The new rules include:

  • Removal of the application requirement to show likely majority support for recognition in the chosen bargaining unit (BU).

  • Removal of the requirement at the ballot stage to show 40% support of the BU.

  • Replacement of the 10% initial threshold for union membership in the BU with “the required percentage”. The required percentage will be set at 10% initially but can be amended under regulations. 

• Sexual harassment prevention – From 6 April 2026, the definition of “protected disclosure” in whistleblowing legislation will be amended to include a disclosure that “sexual harassment has occurred, is occurring or is likely to occur”.

• Single enforcement body – The Fair Work Agency is set to be established on 7 April 2026. In line with that, the commencement regulations confirm a 7 April 2026 commencement date for most of the broad enforcement powers that will be delegated to the FWA. 

These are in addition to the expansion of paternity and unpaid parental leave rights (both of which will become “day one” rights) from 6 April 2026. The 6 April commencement date for these reforms was confirmed back in January. 

The plot twist

There was one big surprise in the regulations. Neither the government’s implementation roadmap from last summer nor its timeline update from earlier this year gave any indication of when the new duty for employers to keep and retain annual leave records would come into force. It was therefore a bit of a surprise to see that this new duty is coming into effect on 6 April 2026. 

For some employers, this new duty could create a significant administrative burden, particularly if they have complex annual leave or holiday pay arrangements for their staff or if their existing systems and records are piecemeal. In due course, enforcement of holiday obligations is expected to fall within the remit of the FWA and this may well include enforcement of the duty to keep adequate holiday records. 

To prepare for the new duty, employers should audit how they record workers’ annual leave entitlement and pay and consider where there may be gaps in this information that need to be rectified. You can read more about the new duty here.

Unresolved storyline

There was one noteworthy omission from the regulations – any mention of statutory sick pay (SSP). Under the as-yet-not-in-force provisions of the ERA, the “waiting period” for SSP will be removed and entitlement will also be expanded to include eligible employees who earn below the Lower Earnings Limit. All indications to date are that these important reforms will come into effect from 6 April 2026, but we do not yet have express confirmation on this. Given 6 April is under 2 weeks’ away, I expect we’ll hear more on this very soon. 

Teasers of more to come

Much of the detail of several key reforms will be set out in secondary legislation rather than in the ERA itself. What the Act does is create the power for the government to issue that secondary legislation. The commencement regulations bring some of those powers into force with effect from 6 April 2026, meaning that the government will (subject to consultation and approval from Parliament, where needed) be able to issue regulations specifying the detail of a range of reforms. This includes the power to make regulations on: 

• what will constitute an “excepted agreement” for the purposes of the exception to the ban on non-disclosure agreements and confidentiality clauses which purport to prevent the worker from making disclosures relating to harassment or discrimination or the employer’s response to such harassment or discrimination. No anticipated commencement date has been provided for this reform. 

• additional protection against dismissal for new parents who have recently returned from family-leave. The government intends to make it unlawful to dismiss pregnant employees and new mothers within 6 months of their return to work, except for in specific circumstances. Consultation into this reform closed in January, with the protections expected to come into effect at some point in 2027. 

• a new requirement for large employers (those with 250 or more employees) to create and publish action plans showing the steps that they are taking to address their gender pay gap and to support employees through the menopause. This reform is also expected to come into effect at some point in 2027. 

There is certainly a lot for employers to think about, particularly with a raft of changes now just a few weeks away. We’ll continue to keep you posted on the next instalments in the ERA story. One thing is for sure – the ERA story has plenty more episodes to come and employers will need to stay tuned. 

Need support navigating these reforms? We have been advising employers across a wide range of sectors on the implications of the Employment Rights Act 2025. If we can help your organisation, please get in touch. 

Further detail on these reforms and the Act more widely is available on our Employment Rights Act hub.