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Government publishes draft Code of Practice for trade unions' right of access to workplaces 

Under the Employment Rights Act 2025 (the "ERA 2025"), a new statutory right will be introduced allowing trade unions a right of access to workplaces. To accompany this new right, the Government published a draft statutory Code of Practice (the "Code") on 8 April 2026, setting out how employers and trade unions are expected to approach access requests in practice. The draft Code is open for consultation until 20 May 2026 and is currently expected to come into force in October 2026, alongside many of the wider trade union reforms under the ERA 2025.

What is the new right of access to workplaces for trade unions?

Trade unions will be entitled to request access to workplaces for specified purposes, including:

Access can be physical, digital, or both (for example, entering premises, emailing employees, or holding online meetings). Access for the purpose of organising industrial action is expressly excluded.

How will trade union access requests operate in practice?

The draft Code sets out a structured step-by-step process for access requests:

What steps should employers be taking now?

Although there is still time before the changes to trade union access to workplaces is finalised and comes into force, employers may find it useful to start thinking about what this could mean in practice. In particular, organisations may wish to:

Employers may also wish to review our Employment Rights Act hub, which is available here, and contains further guidance on the trade union provisions of the ERA 2025 and their practical implications.

Capability, chronic illness and the cost of 'up or elsewhere' policies: lessons from Pal v Accenture

January's Employment Appeal Tribunal decision in Pal v Accenture (UK) Ltd is an important legal insight into managing chronic conditions in the workplace, and the fairness of progression-based performance models.

The case concerned the assessment of endometriosis as a disability, an "up or elsewhere" policy, and the reduction in compensatory awards where an employee would have been dismissed had their employer acted fairly (Polkey reduction).  

Background

Accenture's progression-based "up or elsewhere" model expects employees to demonstrate continuous development towards promotion or they are classified as underperforming.

Ms Pal had worked for Accenture for 10 years when, in 2018, she had urgent surgery and was subsequently diagnosed with endometriosis. As a result, she had two periods of absence totalling four months. Following two consecutive "not progressing" ratings, Ms Pal was dismissed in July 2019. Her appeal was rejected, and so, she brought claims of unfair dismissal and discrimination arising from disability.

The Employment Tribunal upheld the unfair dismissal claim but applied a Polkey reduction of 100%, meaning that Ms Pal was awarded no compensation. The claim for discrimination arising from disability was dismissed.

Employment Appeal Tribunal (EAT) decision

The EAT found that the Tribunal had erred in its decision to make a 100% Polkey reduction, finding that the Tribunal had used the wrong counterfactual. The Tribunal had assumed Accenture would have implemented a new policy mirroring the steps taken in Ms Pal's dismissal rather than hearing evidence on what the employer might have done if it complied with its own policy. The judgement did not demonstrate that dismissal was inevitable.

On progression-based performance models

The Tribunal had concluded that the potentially fair reason for Ms Pal's dismissal was capability. The EAT observed that dismissal under a progression-based performance model may not be fair for capability, confirming that capability is assessed by reference to the work they are employed to do, not their readiness for promotion. Such dismissals may fall under "some other substantial reason", however, this would still require a significant amount of consideration.

On disability discrimination

The EAT found that the Tribunal had formed an adverse view on Ms Pal's credibility, and consequently, failed to properly analyse the medical evidence, the likelihood of recurrence, and the impact of treatment when assessing whether Ms Pal's endometriosis amounted to a disability. The EAT specifically rejected the suggestion that mild periods of relative improvement meant the condition was not long-term or would not recur.

The Tribunal's failure to adequately assess her disability rendered the entire disability analysis unsafe. The EAT remitted all issues for redetermination, delivering pointed criticism to the Tribunal for ignoring Ms Pal's medical evidence due to credibility concerns and comments that "many women have endometriosis without symptoms, or with mild symptoms, and are never diagnosed".

Practical considerations for employers:

This case drives home the importance of responding to health-absences in an appropriate manner. Employers should ensure that they are not disregarding the severity of a chronic condition such as endometriosis in circumstances where there are fluctuating symptoms. Instead, employers should obtain occupational health advice, ensure that medical evidence is recorded and explore meaningful reasonable adjustments. Employers should seek legal advice when dealing with employees with potential chronic health conditions so that a structured, evidence-based approach can be adopted and litigation risk reduced.

Additionally, employers should ensure that promotion and dismissal criteria are consistent with contracts and policies. If relying on a progression-based performance model, they should seek advice on whether their procedures are fair and in line with employment law, or they could risk unfair dismissal claims – especially in the light of the upcoming reduction in pre-requisite service requirements to bring an unfair dismissal claim.

Case update: Bibescu v Clare Jenner Ltd t/a Jenner's

The Employment Appeal Tribunal (EAT) recently handed down judgment in Bibescu v Clare Jenner Ltd t/a Jenner's, providing important clarification on the test Tribunals should apply when assessing whistleblowing detriment claims.

Background

Ms Bibescu (the Claimant) was employed as an accountant by Jenner's (the Respondent), an accountancy firm. A number of concerns were raised regarding the Claimant’s performance, which ultimately led the Respondent to engage a subcontractor, Mr Grimes, to review her work. The Claimant objected to Mr Grimes' involvement and disclosed to the Respondent that he had previously been disqualified as a director and was not a member of a recognised professional accounting body. Despite the Claimant's protestations, the Respondent continued to engage Mr Grimes. The Claimant was subsequently dismissed on grounds of poor performance. In response to her dismissal, the Claimant brought claims for automatic unfair dismissal for making a protected disclosure (i.e. whistleblowing) (section 103A of the Employment Rights Act 1996 (ERA)) and whistleblowing detriment (section 47B of the ERA).

First instance tribunal

At first instance, the Tribunal found that the Claimant's dismissal arose from poor performance rather than any alleged whistleblowing. The Tribunal also concluded that the Claimant had disclosed information to further her own interests, rather than in the public interest. In the light of those findings, the Tribunal dismissed the automatic unfair dismissal claim and its reasoning indicated that the detriment claim would also fail, although the section 47B complaint was not formally determined in the operative part of the judgment.

EAT

On appeal, the EAT upheld the dismissal of the automatic unfair dismissal claim. The EAT agreed with the first instance tribunal's conclusion that the protected disclosure was not the principal reason for the Claimant’s dismissal, given that performance concerns were well documented and pre-dated the disclosure.

However, the EAT allowed the Claimant's appeal in relation to the whistleblowing detriment claim, on the basis that the first instance Tribunal had erred in its application of the law. Specifically, the EAT noted the following:

The case was remitted to a differently constituted first instance Tribunal for reconsideration of the whistleblowing detriment claim.

Key takeaways

For employers, this case highlights the importance of keeping detailed, contemporaneous records. Where performance concerns are well-evidenced, employers are better placed to defend claims of whistleblowing and/or any other improper behaviour.

This case also provides important clarity on the correct test for assessing whistleblowing detriment. A motive of self-interest does not prevent a disclosure from being in the public interest. Tribunals should ensure that they apply the relevant sections of the governing statute strictly.

If you have any questions on any of the issues raised in this article, please contact Henry Cross or Alex Peltiez.

Q: Does an employee have a right to be accompanied to a disciplinary investigation meeting?

A: Ordinarily, no, unless the disciplinary policy stipulates so, or this is needed as a reasonable adjustment for a disability. However, employers can allow the employee to bring a companion if it may assist the parties with the investigation meeting. Clear rules/boundaries should be set in relation to the companion’s role