Supporting your people has never been more important
With employment law continuing to evolve and awareness of neurodiversity growing, employers are facing new expectations around creating fair, inclusive workplaces where everyone has the opportunity to thrive.
The challenge is knowing where to start. The good news? It doesn’t have to mean major policy changes or complicated processes. Often, it’s the practical, everyday actions that make the biggest difference.
That’s exactly what we explore in our latest on-demand webinar.
Here’s what you’ll learn:
- The employment law changes employers should be preparing for.
- What reasonable adjustments really mean in practice.
- How to better support neurodivergent employees, whether they have a formal diagnosis or not.
- Simple communication techniques that help employees feel supported and perform at their best.
- Practical steps to reduce risk while creating a more inclusive workplace.
Transcript
This transcript has been lightly edited for clarity, readability and flow. Every effort has been made to stay true to the original recording.
Welcome
Caroline:
Good morning, everyone. Thank you for bearing with us there. I hope you’re all well. Thank you very much for joining us for today’s webinar, Rethinking the Workplace.
I’m Caroline. I’m the marketing manager here at Bravo, and I’m going to be hosting today’s session. I’m also joined by Adele Oakton, our head of health and well-being here. She’s on hand, and we’re really pleased to have you with us for what should be a timely and practical discussion around neurodiversity in the workplace and the evolving legal landscape for employers.
Now I am joined today by Ellie Walsh from Key Solicitors. Ellie qualified in employment law back in 2006, and she’s built up an extensive experience in both private practice and working in-house within HR teams across a wide range of organisations, from both professional services to not-for-profit. Ellie specialises in all aspects of employment law, and we’re really lucky to have her expertise with us today. Morning Ellie.
Ellie:
Morning. Thank you.
Caroline:
Now we’re also hoping to be joined by Samantha Lavender from Grace Consulting. Sam’s unable to join us for the first part. We’re hoping she’s going to join us partway through. Sam is Grace Consulting’s neurodiversity advice and service manager and has many years experience leading SEND advice services supporting schools, community groups, and businesses.
Sam holds a master’s in autism. She brings a wealth of knowledge and practical experience in neurodiversity and special educational needs, helping organisations better understand how to support neurodivergent individuals effectively. So, thank you to Sam when she gets here. So before we start, I’m going to go through what we’re going to be covering.
So we’re going to start with Ellie today. We’re going to look at the employment law perspective where Ellie is going to talk us through the current and upcoming legal considerations for employers including some recent guidance and what you need to be aware of to stay compliant and reduce risk. And then hopefully later on Sam will be sharing some practical insights on supporting neurodivergent employees making reasonable adjustments and how to create a more inclusive workplace culture.
Neurodiversity in the workplace
Sam:
So, let’s start by talking about what is neurodiversity. Because there’s lots of you’re going to hear lots of words when we talk about neurodiversity. And there might be some that about because perhaps you’ve had an older diagnosis. Or it might be things, oh, that’s not how we talk about it. We refer to it as etc., etc. So, essentially, it’s a different way of thinking.
So some some neurodivergent people they might refer to themselves as having a disability but some people don’t and I think that’s that’s really that’s a really important distinction. So some of the different neurodivergent thinking or behaviours or diagnostic differences are dyspraxia, dyscalculia, very similar to dyslexia, which you’ve probably heard of. Dyscalculia is dyslexia but with numbers, and dyspraxia is more motor skills. So it might be that you bump into things or you’re not able to coordinate your writing or your typing. And then we’ve got Tourette’s Syndrome which you again probably have heard about.
And then we’ve got the bubble there for acquired neurodiversity. That’s like a brain injury that then leaves you thinking processing things in a different way. But the two most common that you definitely will have heard of I’m sure, are Autism and ADHD. So, when it comes to ADHD, we’re going to go into that a little more, but you might also have heard of ADD.
So, it’s Attention Deficit Hyperactivity Disorder or Autism. And that’s the one I’m referring to, particularly when I say it might be an older diagnosis. Some people have been diagnosed with Asperger’s, which we don’t diagnose with anymore. Doesn’t mean it doesn’t exist. It’s you don’t wouldn’t get diagnosed with it now. That changed when the diagnostic criteria changed about 10 years or so ago. And thinking about autism, you might also hear ASD or ASC, Autism Spectrum Disorder, Autism Spectrum Condition; all the same thing.
It’s all Autism. So now the diagnostic criteria are autism. So you might find that somebody, if they’ve got Autism, they might come across as aloof in social situations because they prefer communication that’s functional. So, all the nice chats, the preamble is not of concern.
It’s not something they want to engage in. They prefer that functional communication, which could mean that they come across aloof in those social situations. And you might also find that they shut down a bit. That they don’t engage particularly in team meetings, when there’s lots of people around you, whether that’s on teams or in person, you might find that their communication is straight to the point. Again, getting rid of that fluffy, fluffy social side of things. The communication aspect of Autism is a diagnostic criterion. It’s a diad when it comes to diagnostics. So you will find that people with autism have challenges or deficits, and I don’t like talking about it as a deficit because it’s a social disability, which means it’s all the barriers that we put in place that make it difficult for people, it’s not the person themselves, but the challenges in communication and interaction or repetitive and restrictive behaviours and interests. So you might find that people have difficulty in coping with or managing change.
And that could be anything in the workplace, couldn’t it?
New directives, new forms to use, new like when you’re scripts when you’re on the phone, anything. It might be really difficult, and this doesn’t mean don’t do that; don’t keep everything the same. I think it’s more important that we help people and equip them to deal with the change.
You might find that they’re unsure of personal space. That’s a bit around that communication difficulties. Or the difficulty in holding appropriate conversations for the situation. That’s really complex. If you think about it, because of course, nobody tells us how we talk to other people. It’s generally expected in the workplace that we’re going to be speaking clearly, communicating effectively, not swearing at people, but nobody tells us that. I know it would be deep down, and Ellie would be able to say somewhere deep down in a contract, it would say you have to behave, of course, but it’s not really explicit, is it? That’s how do we know the most appropriate way to act?
Environments could be really overwhelming. It could be the physical environment, or it could be the people within it. There’s an awful lot of sensory information to process, and then that hyperfocus on one aspect of a project. That sounds really helpful to have somebody on your workforce that’s like that. So I think you we’ve got to look at neurodiversity is not oh it’s a different way of thinking. It’s people really struggling.
It can also bring such a richness to our workplaces. So, when we look at the support for Autism, it can’t be treated with medication, nor should it be it’s a social disability, which means we look at the barriers that we put in place. So, we can then look at using structure boundaries, clear expectations of this is what we expect in this situation.
This is the structure. These are the things that are going to make their lives a million times easier. It also means that as employers, you’re going to be getting a lot more out of that person. I’ve put a note there.
Unless the individual has a demand avoidant profile, that might be something that you’ve heard about increasingly, it’s not something that is diagnosed often or in a lot of ICBs. But the demand avoidant profile, pathological demand avoidance, you might have heard it referred to as, and that is a completely different profile around everything is seen as a demand and taken as a demand, and it can be really quite difficult to put structure and boundaries in place. There’s ways around it, but that’s that’s very rare. Visual supports that reinforce messages because sometimes that different cognitive style means you’ve made a gesture and I’m not 100% sure what that means. So if you could follow it up with some verbal language or preferably visuals that support that. So this is where expected to sit, this is where you’re expected to be, is really helpful.
And then social support. Sometimes that social support whilst we’re talking about autism being a social interaction communication difficulty for a lot of people having the social support of somebody saying debriefing or somebody who can say I get it or somebody who can be an arm around the individual can be really helpful and it can really make things a little easier, because I think when you’re in that big group of people it’s really good to know there’s one at least one person that you can go and talk to.
So let’s then have a think about ADHD. So, attention deficit hyperactivity disorder. Sometimes it’s ADD.
So, attention deficit disorder. ADHD is probably, I’m sure, something that you’ve heard of because there’s an increasing awareness is being raised of it because more and more people are being diagnosed with it.
And that’s not because people are popping up, that’s because we know more about it. And until very recently, I always forget the exact the exact figures. I think it’s only in the last, I think it’s either 10 or 12 years, that you’ve been able to be diagnosed with both Autism and ADHD, which seems absolutely mind-boggling when you think they’re co-occurring as co-orbidities, it’s very common to have one and the other, really very common. But that is a relatively new a new diagnosis that you can have both, and ADHD is often, I don’t know about you, but the stereotypes that I come across as it’s a little naughty boy in the classroom, but that’s absolutely not it’s not the case is not the case at all.
It impacts as many women as it does men, as many girls as it does boys. And it’s a got a real stereotype, hasn’t it? And that’s because a lot of people do have the same difficulties.
So some of those might be they struggle to focus or to prioritise tasks. They don’t really, they’re not able to organise their thoughts enough to know what needs paying attention to. But they can also get that hyperfocus on one aspect.
But again, it sounds like a really great person to have on your team. If you’ve got someone that is really focused and into what they’re doing, their motivation can wane, and a lot of that is around chasing dopamine hits and the dopamine hits being completing work, getting it in on time, engaging in a task that they enjoy, anything like that.
And they can come across maybe a little disorganised that bit chaotic. And sometimes I think with ADHD, you can definitely appear, very it’s almost the opposite of a swan analogy. You’re coming across really chaotic, and oh gosh, I don’t really know where all my stuff is or where I’ve lost my bag. I don’t, but you’ve got things under control in so much as you have organised chaos. And I’m not making light to that in terms of it’s still very stressful if you don’t know where your stuff is or what you’re meant to be doing and where, but if you’ve got bit of a you might have a bit more of an insight as to what’s happening than it looks like on the outside.
So you can appear forgetful, and of course, that can lead to mistakes that are caused by impulsiveness. Of course it can. That can happen to all of us, can’t it?
These are not I think when we, and I hope it’s coming across in me talking about these different neurodivergent conditions, that these are all and I normal things these are all human things that we all do and that is not to make it sound like oh we’ve all got Autism and ADHD.
Absolutely not!
But what it does make it very difficult in order to get your diagnosis. Because how do how do that? You need to go and talk to somebody because you’re struggling, because often they’re things that are the human condition.
We all get a bit disorganised, we all struggle, but it’s when that becomes so much that it’s really impacting your life, that’s when we start talking about I need to go and get an assessment. That’s when we start saying there’s something going on here for me, and it’s when it becomes too heavy to carry. You might find that somebody with ADHD displays unexpected behaviours, and we refer to that as things that we wouldn’t expect given the social norms.
So again, really similar to Autism.
So all the more reason why it is mind-boggling that you couldn’t be diagnosed with both and where that crossover is. You might do something unexpected because you’re hyper-focused on one aspect. You’re hyperfocused on a certain piece of work, and you don’t want to you’re sitting in a meeting, and then you think oh that’s my bit done. You get up and walk out. Unexpected behaviour, but one that makes perfect sense because you’re thinking, “Okay, I’ve done my bit. I’ve spoken about my bit. We’ve done my task.”
Sometimes it can make conversations a little tricky because you might find that they that somebody is talking excessively or jumping in, and that’s all around that busy mind; a busy mind that is thoughts pinging, pinging, pinging, and you can see how that would really make somebody fantastic on your team because they’re going “gosh I’ve got so many so many ideas, so many things I want to talk about”.
But, then it’s that social difficulty that can then mean they’re jumping in and talking excessively and of course, that can be difficult to have on your team, absolutely. So, the support for ADHD is really very similar to Autism.
However, you can be medicated for ADHD and that’s because it’s all about the synapses in your brain and all the bits of information that are firing and you can have medication that needs to be it can’t be prescribed by your GP. It has to come from a clinical psychologist or a paediatrician for the little people.
That can really help alleviate anxieties, bring that calmer down, which then means that the support strategies more similar to those autism strategies can be more effective because, of course, you calm down, you’ve brought everything down.
So, behaviour therapy that is used with children and young people predominantly, because that is talking about behaviours that are expected; behaviours the way that we should be behave. It’s not the word I want to use: “behave the way that we should be interacting with different situations”. In behaviour therapy will say; “right, in this scenario here’s things that you can do”. Very similar to cognitive behaviour therapy. Cognitive behaviour therapy is a specific process.
Now, you can go and speak to a counsellor or a therapist and have cognitive behaviour therapy, but a lot of behaviour therapy and a lot of strategies for both Autism and ADHD are based in cognitive behaviour therapies, which means when this is happening in your mind, here is the behaviour that is most appropriate.
So that might be when you are really stressed out, and work has become too much, you can take yourself away from the meeting and go and make yourself a cup of tea. So that’s a Cognitive Behaviour Therapy. It’s putting a behaviour in with a thought.
And that social support, mentorships, body doubling, colleagues who are understanding, again that social support is really, really important and can be really helpful for a person with ADHD. And you can see where this is really similar to Autism. Really similar.
So, let’s think about effective communication and how you can communicate with the neurodivergent people on your team.
Consider the processing time.
You can give a direction or ask a question, and give them time to sit on it and think about it. That fast-paced doesn’t work for everybody. Everybody’s got a different processing time. And be considerate that a neurodivergent person might have a longer processing time than you.
Using clear and concise sentences and messages. If you give too much information in one sentence and it’s got lots of commas in it, sometimes it’s too much.
That person can hear the beginning and the end, but they missed all the stuff in the middle where you’re giving the instruction. So, clear, concise sentences, and explain what you’re doing and why. And look, these are all really helpful things in the workplace, aren’t they? Explain what you’re doing and why.
Be clear and concise. Give me a bit of time to think about it. That sounds like a really good employer to me, regardless. So, these are not over and above strategies. Far from it, and even if we do have to go over and above for someone who’s neurodivergent, that’s really important to include them. But these are really things that we should do.
Write down instructions and expectations. That’s all around cognitive processing and the thought processes that neurodivergent people have. It’s so much easier when the information is written because then they can go back to it, and go back to it once you’ve said something. And that’s why we send slides around, for example, because then you can go, “Oh, yes, that’s what Sam was talking about, because I’ve said it to you, but it’s gone. It’s gone.” And I’m okay with that. I don’t take it personally. I know that’s what happens. But if you’ve got this slide to refer back to, you can be like, “Oh, yeah, okay. I remember she said something about that.”
And look, use an idiom, sarcasm, irony. I’m not saying don’t use it. Absolutely not. But be thoughtful. If someone’s in a heightened state of anxiety, don’t use an idiom or sarcasm that’s going to then make things more difficult for them to process. Speak clearly and concisely.
Sensory condition considerations is a really big one, a really big one, particularly for both Autism and ADHD. And in autism, it’s now part of the diagnostic criteria when it changed about 10 10 12 years ago. Because so many people had sensory differences, around 92%, I think the stats were.
So it’s now part of the diagnostic criteria. I’m sitting in my lovely little garden pod and the light the sun is coming in and I’ve got a tree in front of my window and I can see there’s a bit of a breeze and the floor keeps changing because the shadows of the leaves are there and it’s quite beautiful.
But, if I was neurodivergent, that might be too distracting, and I know this is rich coming from me because I’m talking about it, but I’m talking about it for the purpose of this webinar. But that could become really distracting. I’m not able to do my work because I’m enjoying the sensory input of the of the light and the dappling shadows.
And I think you wouldn’t think about that if I wasn’t talking about it for most people. And I think that the sensory considerations are easiest to gloss over because we’re not all experiencing it. We can filter out all that information.
So, you’ve got to allow people to adjust to their new environments and think about those environmental distractions. If you’re sitting in an office next to a window on a busy street, you can constantly see people walking past and cars walking past. Because that’s not distracting to you doesn’t mean it’s not distracting to somebody else. And again, I’m not saying then keep neurodivergent people away from windows. I don’t mean that at all.
But I mean, if that is something that is attracting to them, find them somewhere else in the office that works for them. If it’s too close to an AC blower or the heater or a door, that might be too much for them. They might not be able to concentrate on what they’re doing. Make their escape routes clear.
And I don’t mean this in terms of when there’s a fire, this is how you leave. I mean, if it gets too much for you, this is where you can go. If it gets too much for you, you are welcome to leave the scenario. And I think some of that is making it clear culturally as opposed to this is where you can go, which is also important.
Consider other access routes, different ways into different ways into the office, different ways into different rooms. Making it making it more accessible and we’ve we’ve obviously got laws around making sure it’s accessible for physical disabilities and wheelchairs and things like that, but that also includes neurodivergent.
Remember what I said at the beginning it is some people do consider themselves to have a disability?
Keep your environment as calm as possible, and again, who likes working in a really busy office? Who likes going into the office, and you go “I’m going to work from home tomorrow because I’ve got nothing done because everybody’s talking constantly”.
And don’t stop stimming. Make space for it. So stimming can be anything that changes from person to person, but it’s a repetitive motion that is quite soothing.
So, for example, I’m talking to you while I’m holding a pen. That is stimming. And you might find that people might want to rock or move their arms or whatever. Make space for it. Make space for it. And if it becomes really distracting for other people in the office, then think about your office layout. Somewhere they can sit that they’re not distracting. and build in downtime to regulate. That’s so important.
That’s it’s so stressful going throughout the day. Giving them a bit of downtime to reset their emotional regulation is really helpful.
So, before I pass on to Ellie, I wanted to talk about, really quickly, how we’ve spoken about neurodiversity in the workplace, but when it comes to the neurodiversity advice service that Bravo is offering, we can talk about anything and everything. Yeah, we talk about children through to adults. so ask us ask us any question you like. Yeah, there.
Q&A: reasonable adjustments and diagnosis
Caroline:
We’ve got a couple of questions in the Q&A. So Ali Peters has asked, “Will the slides be sent out following the meeting, please?” Absolutely. We’ll share them on email for you. And he’s also asked, “How do we ensure what reasonable adjustments mean for the business?”
Sam:
What? So, how do you decide what is a reasonable adjustment?
Caroline:
Annie, do you want to pop a little clarification on that if you can? While we wait for Annie.
Sam:
So, did you say something then?.
Caroline:
No. Was it is it in the chat or is it Oh,
Caroline:
It is in the chat, it’s in the Q&A.
Sam / Ellie:
Oh, yes. How do we ensure reasonable adjustments mean for the business? Ellie’s going to talk a little about reasonable adjustments, I think, as part of bits that you’re talking about. But reasonable adjustments are exactly that. A reasonable adjustment isn’t for the business; it’s for the person.
So, what is a reasonable adjustment for that person that doesn’t impact on your business? So, for example, we were talking a couple of weeks ago about if somebody has to be at their desk at the reception of the hotel and it opens at 8, what is a reasonable adjustment? If the person says, “I need a bit more time to get to work.” Well, then we make their working hours, their day starts between 7 and 8. So, that’s a reasonable adjustment. The reception is going to be manned from 8, but they’re going to get there in their time. That’s a reasonable adjustment.
I wonder, Ellie, if you’ve got a bit more to add about reasonable adjustments from a legal perspective, but it’s about the person, not so much for the business. I think I’m saying that right. Yeah, I think thanks, Sam. Yeah, I think it’s an interesting one because usually when I’m talking about reasonable adjustments, I’m going from the other perspective.
So, it’s really interesting that we can talk about both perspectives here, but generally, what we’re talking about when we’re talking about it from a legal perspective is that everybody can request a reasonable adjustment. It’s got to be something obviously that’s going to help them and is going to be reasonable for them, but also the flip side is it’s got to be reasonable for the business.
So, the one that you’ve mentioned there about changing the times of the working day, there’s no reason why that can’t work for the business. They can work with that. The one example that I like to use, because it’s quite a drastic one, was when there was a situation with a client a few years ago, and there was some accessibility issues, but they wanted the employer to start knocking down walls and all sorts of things because they needed more space.
Now obviously, whilst they felt that was reasonable for them, that thing is a bit extreme for an organisation to have to start knocking down walls and lots of cost and disruption essentially for the rest of the business.
So, it’s always a balance. But I think the key thing is it’s got to be reasonable. It’s got to be reasonable for both, and there’s got to be somewhere that they can agree on what’s reasonable. And I think there’s always an option if somebody proposes a reasonable adjustment, an employer says, “Well, that’s not quite reasonable as far as we’re concerned. However, here is somewhere in the middle, can we meet here, and can we come up with something which is a compromise and which is reasonable for both parties essentially?”
So something along those lines, but it’s it’s it’s about reasonable is the key word there. from both perspectives.
Caroline:
Thank you.
Caroline:
It does a lot of heavy lifting that “reasonable”, doesn’t it?
Caroline:
Yeah, it does. We’ve also got a question in from Emma, Emma Proctor. She says, “I’m aware that diagnosis is very challenging currently and it’s taken around two years for people to be diagnosed via the GP route, though the right to choose can speed it up sometimes and that private diagnoses aren’t necessarily accepted.” Emma wants to know, “How can we best support people stuck in this limbo situation where they aren’t sure what the diagnosis is, as this can be really hard for the individual?” Initial thoughts are occupational health to look purely at workplace challenges, remove barriers, offer adjustments and support, but is there anything else that she’s missing?
Sam:
That’s a really good question, Emma. I’m going to start in terms of diagnostics. Yes, they are taking a really long time. But I think that this private diagnosis has not been accepted is a bit of a myth that is perpetuated within the education health care plan that the SEN education side of things, because it’s not that it’s not accepted there, but there’s lots of complications we don’t have time for today, but they absolutely should be accepted.
I think you’re absolutely right that you support people based on where they’re at. Yeah.
So, you don’t go to your employer and say, “I’ve got Autism, so can I please have a seat near the door in team meetings and a quiet space that I can disappear to?” You would be saying, “I find team meetings really stressful, and sometimes there’s lots of people there, and I can’t take it. So I’d like to be able to leave as and when I can. So I’m going to sit near the door. Is that okay?” Yeah.
So, it’s the same thing that’s not based on diagnosis. And that’s exactly what I mean by the social disability is that it’s it is the barriers that we are putting in place as society that make it difficult.
It’s not a it’s not a deficit within the person.
So, occupational health is really helpful to look at those workplace challenges. And I appreciate that it would mean it’s not that easy for somebody to go and speak to their – especially with a social communication difference – to go and speak to their line manager and say “this is what I’m really struggling with”.
But you can get support; that’s something that we do. We can talk to you about how we can help with that. But to gather your thoughts and say right, “This is, these are the adjustments that I need”.
If it’s something that you require in order to work effectively, that’s a reasonable adjustment; it’s not a reasonable adjustment for people who’ve got a piece of paper that say that this is what’s going on.
So yeah, you’re absolutely right. Occupational health is a really good starting point, and I would urge anybody who feels like they might benefit from some changes or some reasonable adjustments in the workplace to seek an occupational health assessment because that can look at all aspects. It doesn’t look at your chair, your mouse and ergonomic seating or whatever.
If you’re finding it really difficult to cope, you can also talk to them about that. So, and I think that falls under the Autism – ADHD umbrella a little more. Thanks, Sam.
Before we go on, I’m conscious of time. Ellie, Annie has put a bit more context in the Q&A around her previous question. So note that no medical proof is required legally.
So how do we ensure that this is a fair process? For instance, if we change their start time, but maintain that we can’t have that for every employee in the business. It has to work for both the business, while still supporting the employee, but we often receive grumbles from others. So it’s a bit, can’t do right for doing wrong sometimes!
I think that’s right, and it can be. But I think the key thing as an employer is you’ve got to look at everybody’s situation as it is. You can’t make a blanket rule because that isn’t going to fit everybody, and everybody has different ways of working, different needs.
So, I think if you do get grumbles, I think the key message really is we look at things on a case- by case basis. Everybody is an individual, and we want to assess each request as and when we get it at the time and take into account what is relevant when that request is received.
Caroline:
Brilliant. Fantastic. Thank you. Ellie, we’ll hand over to you now for the employment law section.
Employment law update
Ellie:
Lovely. Thank you. Thank you, Caroline. And yeah, morning everybody.
As Caroline said, I’m going to be talking to you about the more, the legal side, the Employment Rights Act and what is going to be happening in the near future.
So, as I’m sure you’ve all heard, the Employment Rights Bill, the Employment Rights Act, it’s been going on for a little while now.
And basically, the act refers to quite a lot of high-level framework, so not a lot of detail. The specific obligations are generally going to be set out in regulations following yet more consultation, and it’s part of the framework of the Employment Rights Act.
The previous act was the 1996 act. So, I’m going to summarise some of the changes, what’s happening, and how this might impact you as we move forward.
Now, you’re probably thinking, what on earth has that got to do with employment law? But the act is attempting to convey a lot of information, and it’s been thrown at us consistently for a while now.
So, one of my colleagues has decided that this is a great pictorial representation of the information that the act is trying to convey.
Again, you’re probably going, “Why are you showing me a picture of a dripping tap?” Well, I’m here to reassure you that, rather than a wild, free-flowing mountainous river which is bombarding you with a constant stream of information, the changes to employment law can be seen as more of a dripping tap. Hence the picture. Hopefully, I will reassure you that it is more the case this morning. Okay, so we’ve already seen some changes take effect.
So, the first set, in February 2026, introduced some new protections which prevent dismissal in industrial action.
Now, the changes mean that where there is industrial action, employees who are taking part in that action are now protected from being dismissed for the entire length of the strike. Now, this is an increase in the protection, as previously there was only protection for 12 weeks. So, obviously, only relevant if you come into contact with any industrial action, but it’s worth being aware that there is now protection for the entire period of the strike and not the 12-week period.
So, changes that came in last month, though very new. Basically, a couple of rights, family-friendly rights, paternity leave and unpaid parental leave are now available from day one of employment. Now parental leave is unpaid, and eligible employees can take up to 18 weeks’ leave for each child. An adopted child up to the age of 18.
Now, the new provisions mean that employees can come in on day one and request parental leave rather than having to comply with any eligibility requirements. Now, it’s worth keeping in mind that there are notice periods they have to observe.
So, they can’t come in on day one and say, “I need to take parental leave tomorrow.” And also, that we can postpone a request if it doesn’t suit everybody, essentially.
So, it’s not a given.
But that is an unpaid amount of leave. Now, paternity leave, again, is now available from day one of employment. But again, there’s a little complication in that it isn’t paid from day one. The eligibility criteria for statutory paternity pay will still exist.
So, it’s the leave that’s available from day one, not the pay.
The third point on the slide is relating to where you have collective redundancies; and it’s an award: a protective award.
So, where there’s been a failure to consult previously, there was an award available up to 90 days’ pay for each employee. This is being doubled. So it can be awarded up to 180 days’ pay per employee.
Now you can probably imagine it could be quite costly for employers if the consultation requirements are triggered. So it’s even more important that we are aware if we are in a situation where we might have a collective consultation and make sure that we comply with the collective consultation requirements.
It is worth pointing out, however, that excuse me, the change only applies to a collective redundancy situation and not where we’re carrying out changes, and discussions and consultations for the purposes of the TUPE regulations.
Again, April this year, we’ve seen changes to Statutory Sick Pay. Statutory Sick Pay, I’m sure you’re aware, it’s now payable from day one. The waiting days have been removed, and so has the lower earnings threshold. So, essentially, Statutory Sick Pay, as you can see now, is paid at either 80% of pay or the Statutory Sick Pay amount, whichever is lower.
Now I know from discussions that this is already causing some concern for employers due to the effect and the impact it may well have. Our general advice around this is that we need to ensure that we have in place clear and consistent absence management policies and that we apply them fairly and robustly. So it’s all about the process. It’s all about the procedure and making sure that we are applying things consistently. Okay.
So we’ve also seen the introduction of the Fair Work Agency last month. So, current, well previously prior to April, the UK had very limited state enforcement where employment rights were concerned. But the introduction of the Fair Work Agency means, allegedly, that the government now have a whole raft of powers of enforcement in relation to employment rights. And it replaces all of those organisations on the slide. So they’ve now all gone, replaced with the Fair Work Agency.
Now what are they going to be doing?
Well, it remains to be seen because obviously it’s still early days, but thoughts are that they will be able to enter premises. They will be able to inspect documents, and they will be able to enforce failures to pay certain statutory payments, such as holiday pay and SSP.
Again, the focus is on helping and supporting employees who may have particular issues with their employers in these areas.
Okay, so that’s a whistle stop of what’s already come in, but we’re going to see a lot more changes starting in October 2026.
The first raft we’re going to see are around trade unions.
Now we’re going to see basically more power to trade unions, essentially. At the moment, there isn’t a right of access into workplaces for trade unions when they are either recruiting or organising trade unions.
So, the act means that they are going to be able to request an access agreement, which is going to enable them to meet on the employer’s premises and recruit or organise workers.
Now I do understand that this potentially sounds like quite a big enhancement and could be slightly scary for employees.
However, not included in the right of action is the opportunity for people to come in and start organising strikes and industrial action. So, hopefully that’s a bit of comfort to employers.
The second thing that’s going to be happening in this area is that there is going to be a duty on all employers to inform workers of their right to join a trade union.
Now, at the moment, we don’t have quite such a strong duty. We have to provide employees with certain information about trade unions. We don’t have to tell them they have a right to join a trade union. Now we’re going to have to tell them at the start of employment, and also then remind them during their employment.
Now, in terms of practically what we can be doing to ensure that we’re complying with this, we could perhaps put a little note in the offer letter or somewhere in an employer handbook to highlight the fact that the individual has a right to join a trade union, then you’ve done it. You’ve complied with it, and you are not going to fall foul of that regulation.
So, where we have employees who are in trade unions who are taking industrial action at the moment, we don’t have specific protection for these employees short of where they have been dismissed. So what the act is also going to do is extend the protection against detriments for taking industrial action.
We suspect that there’s going to be quite a lot of debate around what is a detriment before these provisions take effect, but we are waiting for further details around this. And we’re hoping that regulations are going to be published nearer the time, but hopefully not too late.
So, we’ve got some time to get to grips with them.
But this is one of the areas where it’s something to be aware of, but we need to watch this space for the detail.
We’re also going to see new rights and protections for trade union representatives from October 26. and this will include enhancing the rights to paid time off for trade union officials. And also, we are going to be seeing protection extended to equality representatives of a trade union.
Now, there is a caveat here, and that is that the trade union has to have previously notified the employer that the individual is an equality representative. So, we won’t have a situation where somebody says, “I need extra time off because I’m an equality representative”.
What we might see is a notification that the individual is an equality representative and then a request for further time off to fulfil that obligation.
Okay, so I’m going to move away from trade unions for a bit now. Stronger tipping laws are also going to be coming in October 2026.
Where this is appropriate for your organisation, we are going to have to ensure that employers consult with workers or their representatives to create a tipping policy. And that will also need to be updated every three years. There was a consultation on this specific issue, which closed on the first of April. So we’re hoping for more details around the specifics of how this is going to look very soon. Okay.
So again, in October 2026, we are going to see an enhancement to the preventative duty around sexual harassment, which was introduced in October 2024.
So rather than taking reasonable steps to prevent sexual harassment of their employees, employers are now going to be required to reach a higher standard and take all reasonable steps to prevent sexual harassment.
The second change that we’re going to see is that employers are going to be subject to an obligation not to permit the harassment of their employees by third parties. This is quite a significant change, as currently, employers can’t be held liable under the Equality Act 2010 for harassment of their employees by third parties.
So definitely one to be aware of. Now could be, potentially, quite significant changes.
So I think it’s very important that moving forward, employers ensure that they’ve got clear, effective and appropriate policies in place in relation to sexual harassment, and that also the other key point is that specific training and risk assessments have been carried out, because these are all things that will be taken into account when determining whether the employer has taken all reasonable steps.
Okay, another significant change, so significant it’s got its own slide, is that the requirement to bring most employment tribunal claims within 3 months of termination of employment is going to be doubled and extended to 6 months.
It’s obviously going to have quite an impact where employers are looking at potential claims, and it does mean that employers are going to need to keep this in mind for an extended period, where they feel that there’s the possibility an employee may bring a claim.
Now, along with the ACAS early conciliation period, which has recently been extended to 12 weeks, it might be around 12 months before employers can be certain that claims are not going to be brought against them.
So obviously this does leave for a longer period of limbo, essentially if somebody has intimated they might bring a claim. So it’s important to be aware that this is the case and ensure that any dates of potential claims are diarised and monitored carefully. The last thing we want is to be taken by surprise by one of these. So it’s definitely worth considering this and diarising carefully.
Okay. So, ending “fire and rehire”.
So, we’re moving on to January 2027 now. And there are going to be some quite significant changes. The current position is that an employer can dismiss an employee who refuses to accept a contractual change as long as they can show that there was a potentially fair reason for doing so, and also that the decision fell within what we call the band of reasonable responses after proper consultation. Now, from January 2027, it is going to be automatically unfair to fire and rehire or fire and replace.
It’s worth highlighting here that this only applies to those changes to core terms that you can see on the slide.
So, it’s one that we have to be aware of. It could be quite a significant change, but we have to also be very clear that the changes to the core terms are the only ones that will mean that it’s auto automatically unfair.
So you can see there is a very narrow exception where this won’t be an automatically unfair dismissal, and that is where there is extreme financial distress within the employer and where it was genuinely unavoidable.
Now this is going to be judged quite strictly. So, it’s not going to be a “oh well, we needed to harmonise the terms, or it was a routine cost-saving”. It is severe financial distress that is going to be the only thing which is considered acceptable in this situation as an exception.
So, along with that, we’ve also got the statutory code of practice on dismissal and re-engagement, which has been in force since the summer of 2024.
This is going to continue to apply as well. So, it means that if there has been an unreasonable failure to follow the code, tribunals could increase compensation by up to 25%.
So, there’s a lot in there that needs to be borne in mind, that needs to be considered if we are looking at perhaps changing terms and conditions and at some point. Maybe even looking at fire and rehire situations.
The key point here, as you can see at the end of the slide, ensure that contracts include variation clauses. It isn’t always a magic wand or a magic get-out, but it is always useful to have a variation clause in a contract of employment because it may help in some situations where we are looking to change terms.
Okay.
Another pretty huge change for employment lawyers is that the qualifying period for unfair dismissal is being reduced to six months in January 2027.
Now there was a lot of talk about this, and they were going to be taking qualifying periods away completely so that day one you could qualify for unfair dismissal, but it went backwards and forwards a number of times, and they’ve decided on six months.
So, this means essentially that we’re going to have situations where now we have 2 years really to see if things are working out. We have get-outs within 2 years that we can use.
It’s going to be a much shorter period of time than the six months here. We are looking at all our recommendations on this to make sure that we’ve got three-month probationary periods in place for employees and also to review employees with under two years of service in November 2026. We want to make sure that if there are any issues that need dealing with, they are dealt with well in advance of January 2027, when people could come under the new legislation. The other key point for January 2027 is that there will be a removal of the cap and compensation. As you can see, the figures are up on the slide. But that’s going to be gone.
So yeah, it won’t be capped essentially compensation for unfair dismissal. So, something else we need to really be aware of and watch out for next year. Okay, excuse me. So, moving on, in 2027, we’re going to have mandatory gender pay gap and menopause action plans introduced where employers have over 250 employees.
We’re also going to see additional rights for pregnant workers, where the protected period is going to be essentially expanded and going to apply in lots of other situations, rather than redundancy, where it does now. It’s also thought that it’s going to extend to other forms of family leave, such as neonatal leave, bereaved parents, bereaved partners, and paternity leave.
But again, this is an issue where there’s been consultation. The consultation on the specifics here has closed.
So, we are waiting for further information and regulations in due course, but it’s one to look out for. You can see their flexible working. We’re going to have some changes there. Currently, we can obviously refuse a flexible working request on one of the specific business grounds.
We don’t have to justify any further. What we are going to do, what we’re going to see happening now, is that if we are rejecting a flexible working request, we have to be comfortable that there is a justification to this, and we are also comfortable to disclose it. So, that’s quite a big change that we need to be thinking about. We’re also going to see an extension to the provisions around bereavement leave. And it’s expected but not confirmed that this will amount to any employee who suffers a family bereavement. And there will be a minimum period of one week’s leave available. It won’t be paid, apparently. It will be strictly unpaid in the statutory scheme. And will need to be taken within 56 days of the death.
It’s also going to mean that it extends to parents who suffer a miscarriage before 24 weeks, and also circumstances where IVF implantation has failed and also where they’re on medicated terminations. Now, because of all the different strands within here, it’s one where it would be prudent to ensure that policies are updated so that they accurately reflect the position, and then we can ensure that people are aware of what is available to them. Okay. So I know
Q&A: trade unions and unfair dismissal
Caroline:
I’m going to Ellie, can I pause you there? I’m conscious of time, and we’ve got a couple of questions that have come in. If we could go to those. So we’ve had a question from Natalie, who’s asked about the right to join a trade union. Is that going to be the law from October that all businesses do that, including private companies?
Ellie:
Yes, everybody has to do that. They have to make sure that they notify, even if there is no trade union within that organisation that has already come in and started being involved, it will be everybody.
Caroline:
Brilliant. Thank you, and Theresa’s asked, “Is the qualifying period for unfair dismissals for employees who start on or after the 1st of January 27, or will it include people who commenced in Q3 or Q4 of 26 whose probation is in 2027?”
Ellie:
Yes, it will include that, and that is why we are suggesting that when we get to November to review everybody who has less than two years of service and determine whether there is any action we need to take at that point. Lovely. Thank you.
Further employment law changes and closing remarks
Ellie / Caroline:
Okay, no problem. I was going to say I’m very conscious of time, so I will quickly skip through the last few slides. And hopefully you will have the slides anyway, so it should give you prompts regardless.
So, we talked a little about collective consultation and protective awards earlier. But there are going to be some additional changes again in 2027. So the definition of when collective consultation is required is going to change. It’s going to be based on either 20 redundancies at one site or a threshold percentage. Again, I can’t give you specifics at the moment because we haven’t had the final legislation and the regulations. Consultation is also ongoing on what this is going to look like.
So it’s one where be aware of it. And then we will obviously update everybody as soon as we know anything further. So, the final topic for today from me, you’ll be pleased to know: zero-hour contracts. Now this is one that has had quite a lot of press attention because of the fact that we’re banning zero-hour contracts. We’re not going to be able to do this anymore.
Now it’s not quite the case. They will remain lawful, but they are going to be subject to significant regulation. And the reason is to limit the one-sided flexibility that it’s talked about these these have in the press.
So, where we have these types of contracts, there’s going to be a statutory duty enforced to offer qualifying workers a guaranteed hours contract reflecting their hours that have been worked over a reference period.
It’s expected to be a 12-week reference period, but again, I’m afraid we don’t have anything specific on that yet. It’s going to apply to both zero-hour and low-hour workers. And again, with low-hour workers, the threshold is yet to be defined, and we are looking to further guidance.
Now, the offers that have to be made must reflect both the reference hours. Workers can, however, refuse the offer and remain on zero hours terms, which seems that seems reasonable and that seems to work.
However, there’s always going to be a however, even if somebody refuses an offer, an employer must reoffer after each reference period. And where there are no guaranteed hours, contract compensation is going to be available to that employee. Now again, it is all up in the air, as I say we don’t have specifics.
We need to be really careful to watch out for it. It is going to be extended to agency workers, and this is to try and prevent anti- avoidance essentially. It’s going to cover agency workers regardless. And it’s also, there are other anti-avoidance measures being put in, where employers have perhaps tried to avoid it by trying to manipulate the reference period or limiting work so that the obligation is not triggered. It is going to be something which is quite a big change, but I think my key message at the moment is zero hours contracts will not be illegal. They will still be able to operate.
We have to be very aware of how they operate and be very clear that we need to make these offers even if the individual decides they don’t want to accept it. Also, going to be enhanced notice provisions. So individuals have to be given reasonable notice of their shifts. They have to be given reasonable notice of cancellation or changes to shifts.
And if they don’t, there will be payments which have to be made by the employer if shifts are changed at short notice. You can see the reference to contracting out there as well. Contracting out is going to be you’re not going to be able to contract out of it. So it’s one that we are going to have to get our heads around once the legislation has been finalised and then deal with this attempt to, I suppose, end the one-sided flexibility. but also at the same time trying to retain the use of variable hours working, which can often be really helpful and can often suit both the individual and the employer.
Okay, so that is all from me. Thank you for your patience. I don’t know if there’s any other questions. Caroline, there’s nothing else in the chat or the Q&A. If anyone wants to ask any last minute many questions.
Caroline:
No, not to worry. We will be sending out the slides and the recording after today’s session. So don’t worry if there is something that you want to catch up with us on, we will pass on our contact details. But no, thank you both so much, Ellie and Samantha, for such a clear and insightful session.
And thank you, everyone, who’s joined us today for your engagement throughout. We hope today’s helped clarify the employment law position and highlighted some of the practical ways that employers can better understand and support neurodiversity in the workplace. If today’s session has raised some questions or you want to know more about how we can support you with neurodiversity awareness, reasonable adjustments or wider workplace support, please get in touch with your Bravo contact. And once again, thank you and thank you all for taking the time to join us. Have a great rest of the day.
Thanks again.
Ellie:
Thank you very much. Thank you. Okay, bye.