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The Government's plans to overhaul the Disability Confident Scheme 

The Government has announced an overhaul of the Disability Confident Scheme in the wake of Sir Charlie Mayfield’s ‘Keep Britain Working’ review. The reforms are aimed at incentivising organisations to progress their Disability Confident status and make workplaces more inclusive of disabled talent.

Background:

In 2016 the Department for Work and Pensions launched the Disability Confident Scheme to replace the ‘Two Ticks’ system. The voluntary UK Government initiative was designed to help employers recruit, retain and develop disabled people. Its aims were to:

•  Engage and encourage employers to become more confident so they recruit and retain disabled people;

•  Increase understanding of disability and the benefits of employing or retaining disabled people;

•  Increase the number of employers taking action to be Disability Confident; and

•  Make a substantial contribution towards halving the disability employment pay gap.

Disability Confident Employers will be familiar with the three-tiered scheme which identifies an employer as:

1)  Disability Confident Committed

2)  Disability Confident Employer

3)  Disability Confident Leader

Under the current scheme, organisations have three years to complete each level before moving up, or re-registering to remain where they are.

Whilst this scheme was a positive step towards equal workplace opportunity for disabled individuals, Sir Charlie Mayfield’s ‘Keep Britain Working’ review found that it “lacked teeth”. Similarly, the Women and Equalities Committee found that the disability employment gap remains wide and the disability pay gap continues to widen, with nearly 69% of disabled workers earning less than £15 an hour in 2024. Lobbying for change, the committee suggested a simplification of the scheme.

The proposed reform:

The Government announced on 15 January 2026 that it intends to overhaul the scheme by:

•  Reducing the time employers can remain at the entry level from three years to two, and removing the option for them to renew at this level.

•  Tailoring support for SMEs to their needs and capabilities, so that businesses of all sizes can benefit.

•  Connecting with employers together so that they can access peer-to-peer support and share good practice, with practical resources so that they can tap into the scheme’s full potential.

•  Reflecting the views and voices of disabled people throughout the scheme so that guidance reflects real experiences.

The Government estimates that 11 million paid employees benefit from the Disability Confident scheme, and forecasts even higher numbers as a result of the reform.

What’s next for employers?

Employers who have opted in to the Disability Confident scheme can expect changes as the Government trials the above reforms. The Government will be ‘engaging closely’ with current scheme members, SMEs, larger businesses who are Disability Confident Leaders and the Independent Disability Advisory Panel in the hope of making ‘impactful and realistic’ reforms.  

Hutchinson & Others v County Durham and Darlington NHS Foundation Trust: Employment Tribunal finds Trust's policy of allowing access to single-sex facilities based on asserted gender resulted in harassment and indirect sex discrimination.  

This case concerned a group of female nurses who challenged the Trust’s policy on access to gender‑specific changing rooms. 

Background

The Trust requires uniform wearing staff to change on site and provides separate male and female changing rooms. Under its Transition in the Workplace policy, transgender staff were permitted to use the changing room aligned with their asserted gender, rather than their biological sex. Where staff were not willing to share these facilities, the Trust expected them to use an “alternative space”. However, no such alternative facilities were provided. 

Several female nurses raised concerns after a trans woman (biologically male) began using the female changing room. Their objections were dismissed by the Trust, and they were told they needed to “broaden their mindsets” and receive education on trans rights.

Tribunal findings

Harassment related to sex and gender reassignment.

The Tribunal held that the Trust’s conduct violated the claimants’ dignity and created a hostile, intimidating, humiliating and degrading environment. Key findings included:

•  The Trust permitted a biologically male colleague to use the female changing room.
•   The claimants were required to share this space without the provision of a suitable alternative.
•  Concerns raised by the claimants were not taken seriously, and responses suggested they were being unreasonable or prejudiced.

Indirect sex discrimination

The Tribunal also upheld the indirect sex discrimination claim. It identified two relevant PCPs:

•   Allowing access to single‑sex changing rooms based solely on self‑declared gender identity; and
•   Prioritising the perceived rights of transgender colleagues to use facilities aligned with their gender identity over the rights of female staff to single‑sex changing rooms.

Expert evidence confirmed that women are statistically more likely than men to experience fear, distress or humiliation when required to change in the presence of a member of the opposite sex. On that basis, the PCPs placed women at a particular disadvantage, and the claimants were put to that disadvantage.

The Trust could not justify the policy as a proportionate means of achieving its stated legitimate aims (balancing workplace rights, respecting gender identity, complying with legislation). The Tribunal found that those aims could have been met through less discriminatory alternatives, which the Trust failed to consider.

What this means for employers 

Whilst this is only a first instance Tribunal decision and therefore not binding on other Tribunals, it serves as a useful reminder of the need to think carefully about how workplace policies are drafted and operate in practice. 

Employers should take a balanced approach, considering lawful and practical options that respect all protected characteristics and promote an inclusive workplace. 

Hospital cleaners win racial discrimination appeal: Alpha Anne and others v Great Ormond Street Hospital for Children NHS Foundation Trust

Great Ormond Street Hospital (GOSH) has been found to have indirectly discriminated against 80 cleaners in Alpha Anne and others v Great Ormond Street Hospital for Children NHS Foundation Trust.

Facts:

The Claimants, a group of 80 cleaners of BAME background, employed by OCS Group UK Ltd were assigned work at GOSH. When the NHS Foundation Trust (the "Trust”) brought its cleaning services in-house, the Claimants were transferred to the Trust under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). The cleaners directly employed by the Trust were paid the Agenda for Change rate ("AfC") whilst the Claimants were paid the lower London Living Wage both before, and for 18 months after the transfer.

This disparity in pay led the Claimants to bring race discrimination claims:

1)  Pre-transfer: As ‘contract workers’ under s41(5) Equality Act 2010, the Trust, as ‘the principal’ had a duty to set the Claimants’ pay rates for OCS before the transfer. The Claimants alleged that the Trust’s failure to require OCS to offer its employees AfC rates subjected them to a detriment of lower pay compared with directly employed cleaners amounting to discrimination.

2)  Post-transfer: The Trust had applied a provision, criterion or practice (PCP) under which the receipt of AfC pay was dependent on not having been transferred to the Trust from an outsourced contractor. The Claimants argued that this was indirectly discriminatory.

The EAT’s decision:

The Employment Appeal Tribunal (EAT) rejected the pre-transfer claim, on the basis that section 41 Equality Act 2010 does not permit a discrimination claim to be brought by a contract worker against a principal.

The post-transfer claim was upheld as the EAT found that 78% of the 'contract workers' were of BAME background compared with 51% of the staff employed by the Trust.  This placed BAME workers at a particular disadvantage. The EAT dismissed the Trust’s defence that compliance with TUPE regulation 4(4) to maintain the existing contractual terms justified the disparity in pay. The Claimants’ contract contained a power of unilateral variation which the Trust could have applied to remedy the pay disparity, under regulation 4(5)(b) TUPE.

Implications for employers:

This decision reminds Employers to review pay structures for outsourced versus in-house staff, ensuring that contractors and directly employed staff engaging in comparable work are not subject to unjustifiable pay disparities. Employers should audit any PCPs that may place transferred staff at a disadvantage compared to directly employed staff, conducting equality impact assessments to determine whether inherited terms place protected groups at a disadvantage.

Q: We're thinking about engaging someone on a self-employed basis for maximum flexibility, but we want to potentially give them managerial responsibility and also control their working hours, pay and uniform. Is this possible?

A: The high levels of control you're looking for sound more akin to an employment or worker relationship than genuine self-employment. Wrongly classifying someone as self-employed when they are in fact employed can be a costly mistake. Our article, available here, looks at the different types of employment status and helps give you an idea of how to determine the likely status of the individual.