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Employment Rights Bill: Government Publishes First Consultation Papers

On 23 October 2025, the Government published four consultation papers on the Employment Rights Bill (ERB), covering trade union reform, maternity rights and bereavement leave.

What is the Purpose of the Consultations?

The ERB has been progressing through Parliament over the last year and is expected to receive Royal Assent in November 2025. Although the ERB provides the broad legal framework, much of the detail on how the new rights will operate in practice is still unknown. The purpose of the consultations is to obtain employers’ and employees’ views on these rights, which will inform secondary legislation.

1. Right for Trade Unions to Access the Workplace

The ERB introduces a new duty on employers to allow trade unions to access the workplace to meet, support, represent, recruit, or organise workers and facilitate collective bargaining.

The consultation paper invites views on the following:

•  Requesting and responding to an access agreement: the process for unions to make an access request and for employers to respond, including time limits.

•  Dispute resolution: which factors the Central Arbitration Committee (CAC) should consider when determining whether a union should be granted access.

•  Sanctions: the maximum value of the fine that the CAC should be able to issue to employers for non-compliance with access agreements. The Government proposes a cap of £75,000 for an initial breach and £150,000 for repeat breaches.

The consultation closes on 18 December 2025. The Government intends this right to come into force in October 2026.

2. Duty to Inform Workers of their Right to Join a Union

Under the ERB, employers must provide employees with a written statement informing them of their right to join a trade union.

The consultation paper addresses the following elements of the statement:

•  Content: what information should be included in the statement.

•  Form: whether the statement should be standardised or drafted individually by each employer.

•  Manner of delivery: how the statement should be delivered to new workers, and re-issued to existing workers (i.e. directly, alongside the statement of employment particulars, or indirectly, such as through a staff notice board).

•  Frequency: the frequency with which the statement should be provided to workers. The consultation outlines three options: every six months, annually or at sector specific intervals.

The consultation closes on 18 December 2025. This duty is expected to come into force in October 2026.

3. Enhanced Dismissal Protection for Pregnant Women and New Mothers

The Government is proposing legislation to strengthen dismissal protections for pregnant women and new mothers.

The key issues to address are:

•  Circumstances for dismissal: under what circumstances should it remain lawful to fairly dismiss a pregnant woman or new mother.

•  Commencement date for protections: whether the new enhanced dismissal protections should apply from 'day one' of employment.

•  End date for protections: how long the enhanced dismissal protections should last for mothers who have recently given birth. The Government has indicated that protection will apply during maternity leave and for at least six months after returning to work.

The consultation closes on 15 January 2026. These changes are not expected to come into force until 2027.

4. Unpaid Bereavement Leave

The ERB introduces a new right to unpaid bereavement leave, available from day one of employment, for employees who experience the loss of a 'loved one' (including pregnancy loss before 24 weeks). 

The consultation paper seeks views on: 

•  Eligibility criteria: the types of relationships that should qualify for unpaid bereavement leave.

•  Total duration of leave: the ERB provides for a minimum of one week's bereavement leave. Feedback is sought on whether the entitlement should be longer and the window of time to take leave.

•  Notice: whether a bereaved employee should be required to provide notice to their employer before taking bereavement leave and, if so, the amount of notice required.

•  Evidence: whether a bereaved employee should be required to provide evidence of bereavement and, if so, the type of evidence required. These changes are also expected to come into force in 2027.

The consultation closes on 15 January 2026. These changes are also expected to come into force in 2027.

Employers should start considering how they will manage new duties as outlined above. Although the changes will not take effect until 2026 and 2027, early planning will help to avoid costly breaches and ensure that policies and systems are ready for when the new regulations come into force. 

For further updates on the Employment Rights Bill, please see our Employment Law Updates Hub.

Davidson v National Express: EAT Clarifies Approach to Future Loss in Unfair Dismissal Claims

A recent decision of the Employment Appeal Tribunal (EAT) in Davidson v National Express Ltd offers useful guidance on how Employment Tribunals should approach the assessment of future financial loss in unfair dismissal cases. This case also serves as a useful reminder to employers of the importance of robust internal processes.

Employment Tribunal's Decision & Compensation

Ms Davidson was employed as a coach driver by National Express Ltd. Upon arriving for work, she failed three consecutive alcohol breathalyser tests. Following an investigation and disciplinary hearing, she was dismissed for gross misconduct. Her internal appeal was unsuccessful.

Ms Davidson brought a claim for unfair dismissal. The Employment Tribunal found that the dismissal was unfair, due to procedural flaws in the appeal process. Her appeal revolved around her contention that she had not drunk alcohol the night before, she had not previously failed a test, she would have passed a blood test and that she was taking antibiotics for a kidney infection. The Employment Tribunal found that "the appeal was unfair because the appeal officer did not keep an open mind and did not address the points of appeal". This oversight rendered the appeal process inadequate and contributed to the overall unfairness of the dismissal.

At the time of the Final Hearing, Ms Davidson was 63 years old and had secured alternative employment, albeit at a lower rate of pay. She sought compensation for future loss of earnings up to the age of 70, explaining that her intention was to work until this age due to financial necessity. Despite this, the Employment Tribunal limited the compensation award to the age of 65. Their reasoning was that this was “just and equitable” in the circumstances.

The EAT’s Decision

The EAT held that the Employment Tribunal was incorrect in its approach in determining the compensation. Under section 123(1) of the Employment Rights Act 1996, compensation must reflect the actual loss sustained as a result of the dismissal. Employment Tribunals do have a degree of discretion; however, they must base their decisions on a reasoned assessment of the evidence - not simply on what feels appropriate.

In this case, the EAT found that the Employment Tribunal had failed to properly evaluate the Claimant’s intention to work until 70 years old, nor had it considered the Claimant's financial circumstances. The Employment Tribunal also did not engage with the potential impact of other future contingencies, including ill health and changes in employment conditions. The EAT concluded that the Employment Tribunal’s judgment was based on an “overall feel” rather than an analysis of the circumstances.

Implications for Employers

This decision stresses the importance of following the correct procedure in disciplinary and dismissal processes. Even where the employee's conduct justifies a dismissal, a flawed appeal process can render the dismissal unfair, exposing the employer to liability. The decision also underlines the need for appeal officers to actively reconsider new arguments or evidence raised, rather than simply endorsing the original outcome.

This case also highlights how compensation is assessed, which is useful for employers to understand. Tribunals must consider the Claimant’s actual loss, including future earnings, and must engage with the available evidence. Employers involved in litigation should be prepared for Tribunals to examine the financial impact of dismissal in detail.

For HR teams and decision-makers, this case is a timely reminder to:

•  Ensure disciplinary and appeal procedures are clearly documented and consistently followed;

•  Approach the appeal stage as a genuine opportunity to reassess the decision, giving proper consideration to any new evidence or arguments raised;

•  Keep records of decision-making processes, particularly where dismissal is being considered; and

•  Be aware that compensation awards may extend beyond traditional retirement ages, especially where Claimants intend to work longer due to financial necessity.

To discuss any of the issues raised in this article, please contact the Michelmores Employment team.

Q: What is an investigator's role in a disciplinary process?

A: Primarily to gather and consider evidence about what did (or did not) happen. They should establish the facts by reference to the available evidence and also identify what cannot be established. The investigator should keep an open mind and be objective and balanced, looking for evidence which supports as well as weakens the case against the accused employee. They should not determine guilt or sanctions.

Join us at the Michelmores Employment Law Conference on Tuesday 25 November. The Conference will provide an opportunity to keep on top of the latest employment law developments and explore some of the most complex issues affecting the workplace today.

We will focus on a wide range of issues:

Employment Rights Bill

A deep dive into the latest reforms, practical implications, and what they mean for your organisation.

An interactive Session & Case Studies

Focused on managing grievances in the workplace, with practical insights and real-world scenarios.

Employment Law Update – delivered by James Baker

James' annual foray into those developments that you may have missed over the past 12 months to include key case-law developments, and what lies ahead (other than the Employment Rights Bill!).

We do hope that you are able to join us.