What's new in employment law: September 2026

Welcome to our September update, highlighting the latest developments in employment law. In this article we look at two recent cases, summarise recent and forthcoming legislative changes (including those linked to the Employment Rights Act 2025), and round up the other key news you need to know.

Please note: this article is correct as at 31 August 2026. Employment law changes quickly, so we will continue to monitor key developments and cover them in future updates.

Case updates

In our first case, Cunningham v British Broadcasting Commission, the Employment Appeal Tribunal (EAT) looked at whether the employment tribunal (ET) should have found that the employer knew or should have known that the employee was disabled. When is the right to be accompanied to a grievance or disciplinary hearing triggered? This was the question the EAT had to consider in our second case, Wolfe v Taka Mayfair Ltd.

Cunningham v British Broadcasting Corporation

Ms Cunningham was a television presentation announcer and director for BBC Scotland. She was diagnosed with type 2 diabetes and experienced fatigue, which she said was made worse by her variable shift pattern. She asked to be redeployed while she adjusted to her condition and described her diabetes as a disability. Although the BBC made some changes to her shifts, it did not remove all late-night working immediately. After she made an error during a live broadcast and was subjected to a disciplinary process, she brought various ET claims including failure to make reasonable adjustments and discrimination arising from disability. The ET accepted that she was disabled but held that the BBC did not have actual or constructive knowledge of her disability during the relevant period, meaning her claims could not succeed. The ET also found that the BBC had not failed to make reasonable adjustments and that the disciplinary process was not discrimination arising from disability. Ms Cunningham appealed.

The EAT allowed part of the appeal. It held that the ET had been wrong to conclude that the BBC lacked knowledge of her disability. It knew about the diabetes diagnosis, the associated fatigue, the occupational health recommendations and Ms Cunningham's own description of her condition as a disability. Those facts should have prompted further enquiries if there was any doubt about whether she met the legal definition of disability. The EAT therefore found that the BBC could not rely on a lack of knowledge as a defence. The EAT also held that the ET had failed to consider properly whether it would have been reasonable to remove her from the remaining late shift while further occupational health advice was being sought, and sent that issue to a fresh ET. However, the EAT upheld the ET's decision on discrimination arising from disability.

The decision is a reminder that employers cannot ignore signs that an employee may be disabled. Where there is evidence suggesting that an employee could satisfy the legal definition of disability, employers should make further enquiries. They should also give careful consideration to requests for adjustments and occupational health recommendations, seek clarification where necessary, maintain clear records of any decisions not to implement proposed adjustments and the reasons, and engage in an ongoing dialogue with employees about the disadvantages they face and how those disadvantages might be reduced or removed.

Wolfe v Taka Mayfair Ltd

Mr Wolfe had been employed as head sommelier and manager of a Japanese restaurant for one month. He alleged that he was called into a meeting without warning by the restaurant's owners and was dismissed at the end of it. During ET proceedings, he applied to amend his claim to add a complaint that his statutory right to be accompanied had been breached. The ET rejected his application, noting that although the meeting could potentially have been a disciplinary hearing, the statutory right only arises where the worker requests to be accompanied, and Mr Wolfe accepted that he had made no such request. As a result, the ET concluded that any claim under section 10 of the Employment Relations Act 1999 for a breach of the right to be accompanied was bound to fail. Mr Wolfe appealed.

The EAT dismissed the appeal. It held that the legislation sets out two conditions that must be satisfied before the right to be accompanied applies: the worker must be invited to a disciplinary or grievance hearing; and they must reasonably request to be accompanied. Because Mr Wolfe had not made any request, he could not rely on the statutory right. The EAT rejected his argument that employers should be required to tell employees when a meeting is disciplinary in nature so that they can exercise the right. It found that Parliament had not imposed such an obligation in the legislation and it was not the court's role to fill any gap in the statutory protection.

The decision provides helpful clarification on the circumstances in which the statutory right to be accompanied arises. To benefit from this right, a worker must make a reasonable request to be accompanied. However, employers should not view the decision as a licence to conduct disciplinary meetings without warning. Failing to tell an employee that a meeting is disciplinary in nature could still be relevant to other claims, including unfair dismissal, and best practice is to explain the purpose of the meeting and the right to be accompanied in advance. Employers should keep an eye on the Government's ongoing review of the right to be accompanied, which may result in legislative changes in the future (see below).

Legislation updates

Employment Rights Act 2025 (the Act)

Since our last article, there have been a number of significant developments relating to the Act.

The Government has amended its timeline update three times (on 16 July, 7 August and 25 August) to show new implementation dates for the Act. The main changes are: electronic and workplace balloting for statutory trade union ballots took effect on 25 August; the increase in time limits for bringing ET claims will take effect on 1 October; most of the other October changes (ie the trade union measures and changes to harassment law) will happen on 30 October; and the changes to tipping law will be delayed from October until "by the end of 2026".

Regulations have been made that will bring into force the six-month qualifying period for ordinary unfair dismissal claims, repeal the statutory cap on unfair dismissal compensatory awards and remove the power for the Government to amend the qualifying period by regulations. The reduction in the qualifying period will come into force on 1 January 2027; the Government has said that the other changes will happen in January 2027 but has not confirmed the date yet, although they are expected to take effect on 1 January as well.

The Government has published its response to the consultation on the new trade union right of access, and a draft revised Statutory Code of Practice on trade union right of access has been laid before Parliament, together with two statutory instruments regarding the new right of access (view here), The Trade Unions (Right to Access Workplaces) Regulations 2026 and The Trade Unions (Right to Access Workplaces) (Required Information) Regulations 2026. The new right of access will come into effect on 30 October.

The Government has published its response to the consultation on a revised Code of Practice on access and unfair practices during the trade union recognition and derecognition process. A draft revised Statutory Code of Practice has been laid before Parliament and is expected to come into force on 30 October.

Acas has updated its statutory Code of Practice on time off for trade union duties and activities to reflect the changes to the statutory framework on the rights to time off and the provision of facilities for trade union representatives made by the Act. It has been laid before Parliament and is due to come into force on 30 October.

We reported in our July issue that the Government had published its response to the consultation on changes to tipping law (ie requiring employers to review their tipping policy at least once every three years and to consult with representatives on it). It laid a draft revised Statutory Code of Practice on the fair and transparent distribution of tips before Parliament but withdrew it on 13 July following criticism by Unite. It has now launched a consultation on the revised Code, which closes on 29 September. The changes to the law are due to be implemented by the end of 2026.

New voting methods for trade union ballots and elections came into force on 25 August. From that date, trade unions have been able to use electronic and hybrid voting for union elections and a variety of ballots. They can also use workplace voting for industrial action ballots, provided the employer consents and they enter into a written agreement with the employer. A Code of Practice took effect on 25 August and gives practical guidance on the new voting methods.

Other legislation

The Government has issued a consultation on equal pay reforms and measures to combat race and disability pay discrimination. The consultation proposes a two-stage approach: in phase one, the current system will be improved; and phase two will broaden existing protections to cover race and disability pay discrimination. The consultation closes on 27 October but no timescale has been given for the reforms.

The Equality and Human Rights Commission (EHRC) has published its updated Code of Practice on services, public functions and associations. It came into force on 5 August. It gives practical guidance and reflects the legislative developments, case law and new guidance issued since it was first published in 2011. In particular, it reflects the Supreme Court's decision last year in For Women Scotland Ltd v The Scottish Ministers. The Code is relevant to employers if they are also service providers. The EHRC plans to update its guidance for employers in due course to reflect developments in the law.

The Government Equalities Office has updated its statutory guidance on gender pay gap reporting to reflect the decision of the Supreme Court in For Women Scotland Ltd v The Scottish Ministers. It makes it clear that gender pay gap reporting must be based on employees' biological sex and recommends that employers have a policy or process to collect data on employees' sex, which should apply to all employees regardless of their sex or gender identity.

The Department for Business and Trade (DBT) has started a review of the right to be accompanied. It will consider section 10 of the Employment Relations Act 1999, including how the right currently operates and whether the list of companions is appropriate. The review is expected to last for six months (to January 2027) and the findings will be published in Parliament.

Other developments

HMCTS has banned smart glasses (e.g. Meta glasses) from courts and tribunals. Anyone trying to enter a court building with them will have them confiscated and returned when they leave, in order to prevent people taking images or videos within courts and tribunals.

Acas has published a fully revised draft Code of Practice on Disciplinary and Grievance Procedures and a consultation on it. It proposes substantial changes, including: informal resolution; changes to invitation letters; a new test for suspension; replacing references to "employee" with "worker"; and new sections on reasonable adjustments, manager training and mediation. The consultation closes on 23 September.

The DBT is seeking views on proposals to support the fair, transparent and responsible use of technologies used to monitor, manage or make decisions relating to workers. The consultation closes on 30 September.

The Department for Business, Innovation, Science and Trade has published guidance for employers on zero hours contracts, including information on how to use them, employment rights and alternatives. Reforms to zero hours and similar contracts under the Act are due to come into force in 2027.

Acas has published two sets of guidance on the changes to harassment law that will come into force on 30 October. Sexual harassment - Harassment law changes sets out what is changing, what "all reasonable steps" means, examples of taking and not taking "all reasonable steps", and what employers need to do. Third party harassment - Harassment law changes deals with what is changing, who counts as a third party, what counts as "all reasonable steps", examples of taking and not taking "all reasonable steps" and what employers need to do.

If you would like to discuss any of the issues covered in this article, please get in touch with the author or your usual WBD contact.