Employment Edit: 5 March 2026

Legal Updates

Collective Redundancies

Another Employment Edit, another batch of ERA 2025 consultations published – the most significant being consultation into a new organisation-wide threshold for triggering collective redundancy obligations.

Currently, an employer is only required to carry out collective consultation with affected employees where 20 or more redundancies are proposed “at one establishment” within a 90-day period. That is set to change from next year, when the government intends to publish regulations (under powers contained in the ERA 2025) to introduce an additional trigger that will require the employer to collectively consult with affected employees when a certain level of redundancies is proposed across the organisation, regardless of what sites those redundancies are proposed at. To identify when their collective consultation obligations kick in, employers will therefore need to track and aggregate proposed redundancies across all sites.  

In the consultation, the government is seeking views on what level that organisation-wide threshold should be set at. Option 1 is for the threshold to be a fixed number, with that number set high enough to avoid large employers constantly consulting. The consultation also sets out potential alternative options (including a tiered approach with a higher threshold number for larger employers and/or a threshold based on a percentage of the employer’s total number of employees) but the government’s clear preference is for a fixed number that would apply equally to all employers. The fixed numbers outlined as options within the consultation are 250, 500, 750 and 1000 proposed redundancies. As with the existing threshold, when assessing whether the trigger number has been reached, only proposed redundancies within the same employing entity would be counted.

In this blog post, Katie Wooller shares her thoughts on the consultation and what employers should be thinking about now to ensure they can identify when they are required to consult. With the maximum protective award for failure to inform and consult set to double in April 2026 (from 90 days’ uncapped pay to 180 days’ uncapped pay), it will soon be even more important for employers to take steps to identify when they are required to consult and avoid any inadvertent breaches.

Industrial action detriments

The government also launched consultation last week into the scope of proposed new protections against detriments for taking industrial action.

In the 2024 decision of Secretary of State for Business and Trade v Mercer, the Supreme Court determined that, under existing legislation, workers do not have statutory protection against sanctions short of dismissal where they take part in lawful strike action during working hours. However, the Supreme Court went on to find that the failure to protect workers in this way is incompatible with Article 11 of the European Convention on Human Rights, which protects freedom of assembly and association and incorporates the right to strike.

To correct this, the ERA 2025 contains a new right for workers not to be subjected to “detriment of a prescribed description” by their employer where the sole or main purpose of the detriment is to prevent or deter the worker from taking protected industrial action or penalise them for doing so. In the consultation, the government sets out two options for its approach to defining “detriment of a prescribed description” – a) prohibit all detriments for taking industrial action, or b) create a list of detriments or types of detriments which are prohibited. The government’s preferred option is to prohibit all detriments for taking industrial action, as this provides the fullest protection for workers and is more consistent with existing protections against detriment for trade union membership or activity.

We have updated our ERA hub industrial action page (linked below) to reflect the consultation and will continue to keep it updated once the consultation response is published. The protection is set to take effect from October this year.  

Gender equality action plans

In a further ERA-related update, yesterday the government published guidance for employers on creating gender equality action plans detailing the steps that they are taking to address their gender pay gap and to support employees experiencing menopause. Under the ERA 2025, these action plans are set to become mandatory from 2027, but in the meantime the government is encouraging affected employers (those with 250 or more employees) to produce and publish a voluntary action plan from April 2026 alongside their gender pay gap data.

Indirect discrimination – weekend work

The EAT has upheld a finding thatan NHS Trust did not unlawfully discriminate against a community nurse, on the grounds of sex, when it dismissed her for refusing to work weekends. The Trust asked the claimant to work occasional weekends, but she was clear that she could not agree to this as she had two disabled children and said she had no family members to help with childcare. She was dismissed as a result.

Commenting that “an employer’s needs as a whole…must sometimes prevail”, the Tribunal decided that the Trust’s provision, criterion or practice of requiring its community nurses to work on occasional weekends was proportionate to achieving its legitimate aim (including to move to a 24/7 service and to treat more patients at home) when balanced against the disadvantage to the claimant (which it found to be at the lower end of the scale as it transpired some childcare was available).

The claimant appealed, in part on the basis that she said the Tribunal placed too much weight on the claimant’s stance during consultation prior to her dismissal – the Tribunal had noted that the employer made extensive efforts to reach an accommodation with the claimant during consultation but she remained “intransigent” despite evidence indicating that occasional weekend working would have been manageable. The EAT dismissed the claimant’s appeal, concluding that the Tribunal was right to consider the claimant’s stance as part of its finding that the claimant could have met the weekend requirement, albeit with some difficulty.

(Dobson v North Cumbria NHS Foundation Trust)

Unpaid internships

As part of its plan to ban unpaid internships except in limited circumstances, the government launched a call for evidence last summer in which it sought to understand the circumstances in which interns are either unpaid or are paid below the National Minimum Wage.

The government has now published its response to that call for evidence, outlining its plans for intervention in this area. The response notes the existing entitlements workers have to the NMW, unless a statutory exemption applies – the government notes that unpaid internships which are not covered by the educational exemption in NMW legislation will be unlawful where the arrangements amount to a contract of employment or a contract to personally perform work or services. With that in mind, the government outlines three key actions it plans to take to tackle illegal unpaid internships:

• Reviewing and expanding on its existing NMW guidance to make it easier for all to understand and for workers to identify when they have been mistreated.
• Cracking down on unscrupulous employers through existing enforcement channels and through the soon-to-be-established single enforcement body, the Fair Work Agency.
• Bolstering existing communications campaigns from within and outside of government.