What's new in employment law: November 2025

In a new monthly article, we summarise the employment law developments you need to know about. Each month we will look at important recent cases, what has been happening in relation to new legislation, and other interesting developments.

Case updates

Our first case this month is Mach Recruitment Ltd v Oliveira. The Employment Appeal Tribunal (EAT) had to decide whether the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applied where work carried out by a temporary work agency was taken over by another agency. Next we look at Andrew and another v The Scottish Ministers, where the EAT considered if an employer's failure to investigate matters that were not raised during disciplinary proceedings made two dismissals unfair. Was an employee acting in the course of his employment when he sexually harassed a colleague while giving her a lift to a job? This was the question before the EAT in AB v Grafters Group Ltd (t/a CSI Catering Services International), our last case this month. 

Mach Recruitment Ltd v Oliveira

Mrs Oliveira was employed by G-Staff Ltd (a temporary work agency) and sent to work for its client, Butcher's Pet Care Ltd, as an aluminium tray operative. A second agency, Mach Recruitment Ltd, started providing services to Butcher's in place of G-Staff. Mrs Oliveira worked for Mach until her contract was terminated. She brought claims for unfair dismissal and breach of contract. Mach argued that she had not transferred to it under TUPE. An employment tribunal (ET) held that G-Staff had an organised grouping of employees whose principal purpose was providing services to Butcher's, and that the change in provider from G-Staff to Mach constituted a service provision change for the purposes of TUPE. Mach appealed.

The EAT rejected the appeal. In order for there to be a service provision change, there must be an organised grouping of employees immediately before the transfer. In this case, there was a fairly stable group of employees whose principal purpose was to service the contract with Butcher's and this must have been the result of a conscious decision. A different ET might have decided the case differently but the ET's decision had not been perverse.

Andrew and another v The Scottish Ministers

Mr Andrew and Mr Kerr were employed by the Scottish Prison Service as prisoner management officers. They were involved in a physical intervention with prisoner X during a cell transfer. X did not appear to be hurt after the altercation but the next day he was taken to hospital with visible injuries. He alleged that the prison officers had assaulted him. The Prison Service conducted an investigation and interviewed the two prison officers, X, and the medical staff who had attended him. They concluded that X's injuries were inconsistent with the explanations given by Mr Andrew and Mr Kerr regarding their use of physical force. The Prison Service dismissed them both for gross misconduct. They appealed but were unsuccessful. They claimed unfair dismissal in the ET on the grounds that the Prison Service had not carried out a thorough enough investigation; they argued it had not looked into whether X had been intoxicated or had a motive to lie, and it had not obtained a medical report. An ET dismissed their claims and they appealed.

On appeal, the EAT held that the ET had applied the law correctly. The ET had to consider the reasonableness of the investigation in the circumstances of the case and it had to assess the investigation as a whole. The ET in this case had considered the investigation in its entirety and had set out its detailed reasons for its decision that the extent of the investigation came within the range of reasonable responses. It was entitled to reach that decision.

AB v Grafters Group Ltd (t/a CSI Catering Services International)

AB was a hospitality worker. She was employed by Grafters Group Ltd and was based in Cardiff. She was due to work at Hereford racecourse and went to the Company’s office, expecting transport to the racecourse. She missed the scheduled transport and a colleague, CD (who was not rostered to work), offered to drive her. Earlier that day CD had sent AB some suggestive WhatsApp messages while he was working. During the car journey, CD received a call confirming that AB’s shift had been cancelled. AB asked him to drop her at a bus stop or at home but instead he drove her to a remote golf course, where he sexually harassed her. AB reported the incident to the police and her employer, who did not investigate the incident or offer her any support. AB claimed sexual harassment under the Equality Act 2010. The ET found that the harassment had taken place but dismissed her claim on the grounds that CD was not acting in the course of employment, which meant that Grafters Group was not liable for his actions. AB appealed.

The EAT upheld the appeal and sent the case back to the ET to reconsider. The EAT found that the ET had failed to consider the relevant factors and had applied the wrong legal test in deciding whether CD’s actions had occurred in the course of employment. The ET had wrongly focused on whether CD’s motive was work-related and whether the lift had been arranged or approved by the employer. It had failed to properly analyse whether the harassment had occurred during an extension of CD’s employment. It should have taken account of CD’s prior conduct (ie the earlier WhatsApp messages) and considered whether the harassment formed part of a course of conduct. The harassment had taken place during a journey that was connected to work, even if the shift was later cancelled. In addition, CD had previously given AB lifts to work and informal transport arrangements were not uncommon in the business.

Legislation updates

Employment Rights Bill – the Bill went back to the House of Lords on 28 October for them to consider the House of Commons' amendments and reasons. The Lords rejected the amendments, agreed some further changes and sent the Bill back to the Commons, where it was debated on 5 November. The Commons rejected the Lords' amendments, which means that it will have to go back to the House of Lords again. At the time of writing, no date has been set for the next debate.

The Government has launched public consultations on some of the new rights and protections that will be introduced by the Bill:

• Make Work Pay: duty to inform workers of right to join a union
• Make Work Pay: trade union right of access
• Make Work Pay: enhanced dismissal protections for pregnant women and new mothers
• Make Work Pay: leave for bereavement including pregnancy loss.

The two trade union consultations will close on 18 December and the others will close on 15 January 2026.

Our Employment Rights Bill timeline contains information on the progress of the Bill and is updated regularly.

Victims and Prisoners Act 2024 – section 17 of the Act came into force on 1 October. It makes a provision in an agreement void if it purports to prevent the making of a disclosure of information by a victim of a crime (or a person who reasonably believes they are a victim) to certain specified bodies, qualified lawyers or individuals who provide a support service to victims. The Ministry of Justice (MoJ) has published guidance for victims and individuals on the changes to non-disclosure agreements (NDAs) under section 17, which explains what the changes mean for victims of crime. The MoJ has also updated its guidance for businesses about the changes to NDAs.

Other developments

You may be interested in the recent developments we summarise below.

New online HR1 form – the Insolvency Service has launched an online HR1 form for employers to give the Redundancy Payments Service advanced notification of proposed collective redundancies. The form has eight parts and takes about 40 minutes to complete. Use of the form is voluntary at the moment but it will be compulsory from 1 December. The Insolvency Service has also published questions and answers from its online demonstration of the new HR1 form.

CMA guidance on competition law and employment – the Competition and Markets Authority has published guidance for employers on recruiting workers and setting pay and other working conditions without breaching competition law. It covers no-poaching agreements, wage fixing, information exchange and collective bargaining negotiations.

Government response to WEC report on paternity and shared parental leave – the Government has published its response to the Women and Equalities Committee June 2025 report, which set out the findings from its inquiry and call for evidence on paternity and shared parental leave. The Government has stated that it will consider the findings as part of its current review of the parental leave and pay system.

For further information about any of these developments, please get in touch with the author or your usual WBD contact.