Employment Edit: 19 February 2026

Legal Updates

Single-sex facilities

Last week, the High Court ruled that guidance issued by the Equality and Human Rights Commission (EHRC) following a Supreme Court judgment on the definition of ‘sex’ in the Equality Act 2010 was not unlawful.
 
In the April 2025 decision of For Women Scotland v The Scottish Ministers, the Supreme Court determined that the terms “man”, “woman” and “sex” in the Equality Act 2010 refer to biological sex. Later that month, the EHRC issued an interim update on the practical implications of that decision. The interim update focussed on the effect of For Women Scotland on the provision of single-sex facilities, particularly toilet facilities.
 
Whilst various aspects of last week’s High Court decision related to facilities made available by service providers for public use, the High Court also made findings relating to the rules that govern the provision of toilet and changing room facilities in the workplace – the Workplace (Health, Safety and Welfare) Regulations 1992 (“the 1992 Workplace Regulations”). In particular, the High Court found that the terms “men” and “women” in the 1992 Workplace Regulations refer to biological sex. This finding is relevant to the interpretation of the provisions in the 1992 Workplace Regulations regarding separate rooms containing toilets for men and women. The claimants have indicated that they intend to appeal.
 
This decision, together with three Employment Tribunal judgments published in the last few months, underlines the importance of employers reviewing the toilet and changing room facilities that they provide and their policies governing access to those facilities. We have been advising a range of organisations on how best to navigate the various sensitive and complex issues related to facilities in the workplace – please do get in touch if we can assist your organisation.
 
(Good Law Project Ltd and others v EHRC)

Changing employment terms

Following the publication earlier this month of a consultation into its scope, Kate Redshaw has written a blog post exploring the new “fire and rehire” prevention regime. Kate considers what the new protections will mean for employers contemplating changes to terms and conditions, and what steps employers can take ahead of the change coming into effect in January next year.

Flexible working

Just as the last edition of Employment Edit landed, so too did a fresh batch of government consultations. This included consultation into aspects of the Employment Rights Act 2025’s flexible working reforms, which are set to take effect in 2027.
 
Under those reforms, employers will only be able to refuse a flexible working request where it is “reasonable” for it to do so on one or more of the existing eight statutory grounds. The employer will be required to state the ground for refusal and explain why it considers that it is reasonable to refuse on that basis. At this stage, it remains to be seen how interventionist tribunals will be in their assessment of when it is reasonable for an employer to refuse a request.
 
The government also intends to use powers set out within the ERA 2025 to issue regulations which will set out the consultation process that an employer will be required to follow before rejecting a request. That process for consulting on flexible working requests is the focus of the government’s consultation (which closes on 30 April 2026) – it seeks views on a proposed requirement that the employer must meet with the employee making the request to “consider ways to address challenges with the requested arrangement and explore whether a suitable alternative arrangement could be agreed.” Interestingly, the process outlined in the consultation also includes a proposed requirement for the employer to clarify whether the employee would like the request to be considered as a reasonable adjustment.

Industrial action reforms

Several ERA 2025 reforms took effect yesterday will make it significantly easier for trade unions to organise and take industrial action. The key changes are:

• Trade unions no longer need to provide certain pieces of additional information (including a summary of the issues in dispute and the type of industrial action short of a strike) on the ballot paper.
• The period of notice of industrial action that a trade union needs to give an employer has been reduced from 14 to 10 days.
• Provisions requiring trade unions to supervise pickets no longer apply.
• The trade union’s mandate for industrial action now expires 12 months after the ballot, instead of 6 months after the ballot.
• Protection against dismissal for taking part in industrial action now lasts for the length of any strike action – this change has been achieved by removing the current 12-week “protected period”.

For more information about the industrial action reforms contained in the ERA 2025, and what those reforms mean for employers, take a look at our ERA hub page below.

Further consultations

The following two consultations were also launched earlier this month:

• consultation into modernising the agency work regulatory framework (closing on 1 May 2026); and
• consultation into strengthening the law on tipping (closing on 1 April 2026).

In the first of these, the government is seeking views on how the regulatory framework for agency work should be adapted to account for umbrella companies. The government has previously announced that umbrella companies (intermediaries that employ temporary staff on behalf of agencies and end-users) will be regulated for employment rights purposes to ensure that workers have comparable rights and protections when working via an umbrella company as they do when employed directly by an agency.

The consultation into tipping reforms focusses on the new requirements (set to be introduced from October this year) for employers to periodically review their tipping policy and to consult with the workforce when developing or revising that policy. In this blog post, Eilidh Wood and Shannon Willett consider what workforce consultation on tipping arrangements will look like in practice.