last updated 18.06.2025

The answer to this in brief is yes, but it seems unlikely that any guidance (at least in the short term) will be as focused on employers as we would like.  

As outlined in the EHRC’s interim update – which was published shortly after the Supreme Court judgment which confirmed that references to “woman”, “man” and “sex” in the Equality Act 2010 mean “biological woman”, “biological man” and “biological sex”– a public consultation is currently underway in relation to a new Code of practice for services, public functions and associations (“Code of practice for service providers”). Make UK will be submitting a response to this consultation, which closes at the end of June. (To read our earlier e-alerts on For Women Scotland v The Scottish Ministers and its implications, see here and here.)

Crucially, however, the Code of practice for service providers is not aimed at employers. There will therefore remain a pressing need for EHRC employer-focused guidance as a result of the For Women Scotland v The Scottish Ministers judgment – in particular, we would like the EHRC to update its Employment Code of Practice.

As outlined in our earlier e-alerts (see above), the most urgent issue for employers is toilet facilities (and where relevant changing facilities). Whilst the EHRC interim update does cover employers and addresses who should use which toilet facilities in the workplace, there is some debate about whether it has interpreted the Supreme Court judgment correctly, and, for example, the Good Law Project has issued legal action against the EHRC in light of this (see here).

We will continue to press the Government for a revised version of the Employment Code of Practice, as we know that employers – including many of our members – are grappling with how they can act lawfully and be fair to different employees in their workforce. Employers require guidance about how to manage their obligations to all their employees, including trans and non-gender confirming employees, those who feel strongly about having ‘single-sex spaces’, and those with particular philosophical or religious beliefs. Employers need to know how to balance those obligations in a way which avoids discrimination on the grounds of sex, gender reassignment, and religion or belief.

If you are not a Make UK subscriber, you can contact us for further support. Please click here for information on how we can help your business.

 

The Employment Rights Bill is working its way through the Parliamentary process and is currently at the Committee stage in the House of Lords (see here). It is possible the Bill could receive Royal Assent before Parliament breaks for the Summer recess (towards the end of July). However, due to the lengthy scrutiny the Bill is going through in the House of Lords, this may be delayed until September.

Even after the Bill has received Royal Assent, various regulations (and some consultations) will be needed for employers to understand how many of the measures in the Bill will work in practice. For example, the Government had indicated that it will consult on its proposed changes to unfair dismissal law – which are due to take effect from Autumn 2026 – following which regulations will need to be made. In particular, it is currently unclear how long the “initial period” (i.e. the period during which a light touch dismissal process may apply) will last and exactly what the new light touch dismissal process will look like (see here). 

The Government has indicated that it will publish a roadmap in due course, which should hopefully provide useful insights.

If you are a Make UK subscriber, you can speak to your regular adviser about any queries you may have about the Employment Rights Bill and/or to request further consultancy support.

If you are not a Make UK subscriber, you can contact us for further support. Please click here for information on how we can help your business.

Indirect discrimination may occur when you have a provision, criterion or practice (a “PCP”, which includes a rule, condition or standard way of doing things) which applies to everyone but disadvantages a group of workers with a particular protected characteristic. Where the PCP disadvantages an individual who shares that protected characteristic, it will amount to indirect discrimination unless it can be justified (i.e. unless it is a ‘proportionate means of achieving a legitimate aim’).

The Equality Act 2010 outlaws indirect discrimination in relation to all protected characteristics apart from pregnancy and maternity, although discriminating on grounds of pregnancy and maternity generally also amounts to sex discrimination, so a woman who believes she has been indirectly discriminated against due to pregnancy/maternity may bring an indirect sex discrimination claim. 

Examples of employment practices that may be indirectly discriminatory include the following (identifying in brackets the groups that may be put at a particular disadvantage):

  • Requiring job applicants to have a minimum length of work experience (younger people).
  • Applying a practice that workers will be considered for promotion only if they are able to work antisocial hours (women).

A worker is also able to claim indirect discrimination even if they do not share the particular protected characteristic of the disadvantaged group, provided they suffer the same disadvantage as the group as a result of the PCP.  This is usually referred to as ‘same disadvantage indirect discrimination’. 

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about discrimination (and equality, diversity and inclusion) and/or access further information about this in the HR & Legal Resources section of our website (specifically the “Unlawful discrimination” webpage).

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business. 

Employees do not have a specific legal right to use their mobile phone during working hours. However, it is quite common for employers to allow some use of personal mobile phones during the work day provided this does not interfere with the employee's work. What is appropriate will depend on the circumstances. For example, manufacturers often prohibit employees from using their mobile phones on the shop floor for health and safety reasons (although they would usually be able to use their phones in common areas during their break times).

If you are considering tightening up your approach to employees’ use of their personal mobile phones during working hours, where you have previously allowed this, this may amount to a change in your mobile phone/electronic communications/social media policy. Whilst such policies will usually be non-contractual, an employee might try to argue that being permitted to use their phone is implied into their employment contract (e.g. by custom and practice). Where you are changing contractual terms, and often even where the changes are non-contractual, you should take steps to consult with employees/their representatives and follow a changing terms process.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about changing employment terms and/or access further information about this in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources.

No, on 4 June 2025, Farmor’s School was denied permission to appeal to the Supreme Court, see here.

As a reminder, in February 2025 the Court of Appeal handed down its judgment in the key case of Higgs v Farmor’s School, which centred on the difficult issue of how employers should manage conflicting rights in the workplace – namely, how best to balance gender-critical views and beliefs relating to LGBT+ with the rights of the LGBT+ community. This is a complex and evolving area of law, which can be extremely difficult for employers to navigate, particularly where they believe that their reputation may be at risk.

To read our earlier e-alert exploring the Court of Appeal’s judgment in this case, see here.

Notably, permission to appeal has also been refused in ADP RPO UK Ltd v Haycocks, which we covered at our Spring Employment Law Update. By way of reminder, that case looked at whether a redundancy process can be considered fair when an employer assesses and scores the employee(s) in question before the consultation process begins.

If you are not a Make UK subscriber, you can contact us for further support. Please click here for information on how we can help your business.