Key takeaways
Consultation to shape fire and rehire rules
Government seeking views on which contract changes count as restricted variations.
New duties on tipping transparency
Strengthened laws re NDAs, tipping policies and staff consultation.
Preparing for ERA 2025 workplace reforms
Consultations cover flexible working, union access and recognition rules, e-balloting and agency worker regulation.
The Employment Rights Act 2025 is a major part of the government’s ‘Make Work Pay’ agenda. Many of the Act’s provisions require regulations to flesh out some of the finer details of what will eventually be implemented in phases across 2026 and 2027. The government has recently launched a series of public consultations on the following key aspects of the Act:
Consultation on misuse of non-disclosure agreements (NDAs)
The Employment Rights Act 2025 includes provisions which render any confidentiality/non-disclosure provision (often called NDAs) in an agreement between an employer and a worker (whether in an employment/worker contract or not) void and unenforceable, if the provision(s) purport to prevent a worker (whether they are a victim or witness) from making an allegation or disclosing information relating to work-related harassment and discrimination. These new rules are expected to be introduced in 2027. Regulations will ‘except’ some agreements and can specify who is covered by these provisions (for example, to include self-employed consultants and those in work experience/training). The government has launched a public consultation - Make Work Pay: Misuse of Non-Disclosure Agreements (NDAs), which seeks views on:
The conditions that should be imposed for an ‘excepted agreement’ to come into being. The government proposes that workers should receive independent legal advice, will need to express their preference to enter into the NDA in writing, will have a non-waivable 14-day statutory cooling off period, that a written and accessible copy of the agreement must be provided to all parties, and that the NDA may only relate to conduct that has already taken place. The government is also considering whether any NDA must be time-limited.
The categories of person to whom workers will still be able to make "permitted disclosures" after entering into an excepted agreement. The government proposes that this should include law enforcement, lawyers, regulated professionals and tax advisers, victim support services, regulators, Acas, trade union representatives, and their close family. The government is also seeking views on whether to permit disclosures to prospective employers, recruiters and a wider group of family and friends.
Whether the protection should be extended in the future to individuals who do not fit within the usual statutory definition of a ‘worker’ (such as agency and seconded workers, those on a work experience placement, nurses and midwives in training, and certain NHS workers) and/or self-employed individuals.
The consultation closes on 8 July 2026.
Consultation on draft code of practice on trade unions’ right of access into workplaces
The Employment Rights Act 2025 introduces a statutory right for independent trade unions to apply to access workplaces, both physically and digitally, for the purposes of meeting, supporting, representing, recruiting or organising workers, and facilitating collective bargaining. This is expected to come into force in October 2026. The government recently published its response to its 2025 consultation on these access rights, together with a new consultation ‘Make Work Pay: consultation on draft code of practice on trade unions’ right of access into workplaces’ and ‘draft Code of Practice: Right of trade unions to access workplaces’. This new consultation sets out details of the proposed process trade unions will use to apply for an access agreement, the process for employers and trade unions to negotiate agreed access agreements, and the process for referring the matter to the CAC if those negotiations are not successful. It also provides clear guidance on how trade union access agreements will operate in practice, covering complex issues such as privacy, safeguarding and non-typical working patterns. Crucially, the right to seek access is not restricted to ‘recognised’ trade unions and the union seeking access does not have to demonstrate that it has any members amongst the current workforce, let alone a minimum percentage of members. It is also important to note that an access agreement (whether agreed via negotiation or imposed by the CAC) will be enforceable by the CAC. The consultation closes on 20 May 2026.
Consultation on new protection from detriment for taking industrial action
The Employment Rights Act 2025 will provide new protection for workers against detriments that they are subjected to by their employer to penalise, prevent or deter them from taking official industrial action. The Act also enables the government to set out in regulations the types of prohibited detriments. This is expected to come into force in October 2026 and, in preparation for this, the government recently launched a consultation ‘Make Work Pay: Protection from detriments for taking industrial action’, which invites views on what the prohibited detriments should be. This confirms that the government’s preferred option is to prohibit ‘all’ detriments as this will allow the courts and tribunals flexibility to determine cases on a case-by-case basis. Alternatively, the government may create a list of ‘specified’ prohibited detriments, although it is concerned this list may quickly become outdated and may encourage employers to seek novel ways to cause detriments not covered on the list. The government has also indicated that it is inclined to add detriment claims for taking industrial action to the list of claims where an uplift or reduction of up to 25% can be awarded by an employment tribunal where there has been a failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures. The consultation will close on 23 April 2026.
Consultation on new organisation-wide threshold for triggering collective redundancy consultation
The Employment Rights Act 2025 contains provisions designed to amend the threshold for triggering the duty to engage in collective redundancy consultation. In addition to retaining the existing single site threshold (20 or more redundancies across a single site over 90 days), new provisions can require redundancies split across more than one of the employer’s sites to be aggregated in order to trigger the duty to collectively consult. These new rules are expected to come into force at some point during 2027 and, in preparation for this, the government recently launched a consultation ‘Make Work Pay: Threshold for triggering collective redundancy obligations’, which considers what the appropriate entity-wide collective consultation threshold ought to be. Whilst it is considering four possible threshold models, the government has indicated that it is most inclined to either: (a) set a single fixed number threshold of somewhere between 250-1,000 organisation-wide proposed redundancies; or (b) set a tiered threshold for different sized employers (e.g. 250 redundancies for organisations with 0-2,499 employees, 500 redundancies for those with 2,500-9,999 employees, and 750 redundancies for those with 10,000 or more employees). The consultation closes on 21 May 2026.
Consultation on fire and rehire: changes to expenses, benefits, and shift patterns
The Employment Rights Act 2025 will, from January 2027, make it automatically unfair to dismiss an employee who does not agree to a ‘restricted’ variation(s) where their employer is seeking to employ another person or re-engage them under a varied contract of employment to carry out substantially the same duties as the employee carried out before being dismissed, unless the employer can prove it was in serious financial distress and, in all the circumstances, could not have reasonably avoided the need to make that variation(s). The government has launched a consultation – Make Work Pay: Fire and Rehire: changes to expenses, benefits, and shift patterns to help it to decide: (a) which expenses and benefits in kind should be excluded from the scope of a restricted variation; and (b) which variations to the timing or duration of a shift will be included within the scope of a restricted variation. The consultation closed on 1 April 2026 and we are awaiting the government’s response.
Consultation on tipping: strengthening the law on tipping
The Employment Rights Act 2025 will, from October 2026, require employers to: (a) consult with workers or their representatives before producing a written tipping policy; (b) give workers access to a written summary of this consultation; and (b) review their written tipping policy at least once every 3 years. In preparation, the government has launched a public consultation - Make Work Pay: Strengthening the Law on Tipping. This asks questions around how the existing tipping legislation operates in practice (to help identify whether any improvements could be made), considers how the new requirements under the Act can most effectively be implemented, and invites views on the statutory Code of Practice on fair and transparent distribution of tips (which came into force in October 2024 and will be updated prior to the new rules being implemented). The consultation closed on 1 April 2026 and we are awaiting the government’s response.
Consultation on recognition code of practice and e-balloting
The Employment Rights Act 2025 will simplify the trade union recognition process and introduce electronic trade union ballots. In preparation for these changes, the government has launched a consultation - Make Work Pay: recognition code of practice and e-balloting unfair practices and a Draft Code of Practice: Access and Unfair Practices During the Recognition and Derecognition Process. The Consultation will closed on 1 April 2026 and we are awaiting the government’s response.
Consultation on flexible working: reasonableness and consultation process
The Employment Rights Act 2025 will, from 2027, introduce further flexible working reforms. An employer will only be permitted to refuse a flexible working request if: (a) It considers that specified business ground(s) apply (which replicate the existing grounds); and (b) If it is 'reasonable' for the employer to refuse the request on that ground(s). Regulations will specify the steps an employer must take in order to comply with the requirement to consult an employee before rejecting a flexible working request. In preparation, the government has launched a public consultation - Make Work Pay: consultation on improving access to flexible working. This seeks views about the new consultation process that employers must follow when they are unable to accept a statutory flexible working request. The consultation closes on 30 April 2026.
Consultation on agency workers: modernising the regulatory framework
The Employment Rights Act 2025 will, from 2027, bring umbrella companies within the definition of an ‘employment business’ for the purposes of the Employment Agencies Act 1973 and the agency conduct regulations. In preparation for this change, the government has launched a consultation Make Work Pay: modernising the Agency Work Regulatory Framework. This seeks views on how regulation of the temporary labour market should address umbrella company activity and how the regulatory framework may be modernised. The consultation closes on 1 May 2026.
For further details of the Act’s provisions, see our Employment Rights Act 2025 Tracker.
