Employment Law Bulletin: September 2026

The biggest shake-up of the Acas Code in 17 years

Acas has published a draft new Code of Practice on Disciplinary and Grievance Procedures for consultation. It is the first full rewrite since 2009 and, although nothing is final yet, there are some significant changes for HR.

Here are the headlines:

Informal resolution moves into the Code

Currently, the encouragement to resolve issues informally sits outside the statutory Code itself. The draft changes that, with dedicated sections on employers and workers trying informal resolution before formal procedures begin.

That could give informal resolution greater legal significance when tribunals consider compliance with the Code and any potential uplift to compensation.

There is a practical change too. A disciplinary invitation would need to explain what informal steps have already been taken, or why none were appropriate. Workers raising formal grievances would face a similar expectation.

Suspension gets a tougher test

The draft makes clear that suspension should only be used where necessary and in limited circumstances. That reflects the direction of existing case law but puts the message much more firmly into the Code: suspension should not be the automatic response to an allegation.

More emphasis on equality, training and mediation

There are new standalone sections covering reasonable adjustments, manager training, and mediation/facilitated conversations. The latter is particularly notable: mediation is absent from the current Code, while the draft expressly contemplates pausing formal procedures to allow it to take place.

The draft also replaces “employee” with “worker” in most places, potentially broadening the Code's reach, although the statutory 25% uplift remains available only in respect of employees.

But what about AI?

One notable omission is AI. The draft Code is silent on its use in grievance situations, despite AI-generated grievances and responses becoming a very real issue for HR teams.

Acas has not ignored the issue altogether. The consultation specifically asks whether the non-statutory guidance accompanying the Code should address the use of AI in disciplinary and grievance procedures. That is an area where HR practitioners may particularly want to have their say.

What should HR do now?

Don't rewrite your policies yet. But start identifying where changes may eventually be needed, particularly around informal resolution, disciplinary and grievance templates, suspension, and manager training.

The consultation closes on 23 September 2026.

Part-time worker discrimination: why treating everyone the same may not be good enough

Treating everyone the same sounds like a fairly safe HR strategy. But, as the Supreme Court has confirmed in Augustine v Data Cars Ltd, identical treatment can still amount to less favourable treatment of a part-time worker.

Mr Augustine was a private hire driver working an average of 34.8 hours a week. Data Cars charged all drivers the same £148 weekly fee to access its booking system, regardless of their hours. His full-time comparator worked more than 90 hours a week.

The fee was identical, but its impact was not. Spread across fewer working hours, it left Mr Augustine paying proportionately more and taking home proportionately less.

The Supreme Court clarifies the test

Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, part-time workers are protected against less favourable treatment on the ground that they work part-time.

Previous authority had suggested that part-time status had to be the sole reason for the treatment. The Supreme Court has now rejected that approach.

Instead, part-time status only needs to be a significant or effective cause. Other reasons can be operating alongside it.

That potentially makes it easier for part-time workers to establish a claim. An employer cannot necessarily point to another reason for an arrangement and say that part-time status was therefore irrelevant.

There is, however, an important safety valve. Unlike most direct discrimination claims under the Equality Act 2010, less favourable treatment of part-time workers can be objectively justified.

What does this mean for HR?

Augustine is a useful prompt to look again at policies which appear neutral because they apply to everyone equally.

Fixed charges, qualification thresholds and access to benefits may all have a disproportionate impact on those working fewer hours.

The question for HR is no longer simply: “Do we apply the same rule to everyone?” It is also: “Does that rule leave part-time workers worse off because they work part-time and, if so, can we justify it?”

The right to be accompanied: don’t ask, don’t get?

Imagine being called into a meeting at the end of your shift, with no warning about what it concerns, and leaving it having been dismissed. Have you been denied the right to be accompanied? Perhaps surprisingly, not necessarily.

That was the position in Wolfe v Taka Mayfair Ltd. Mr Wolfe said he was called into a meeting without warning or explanation and dismissed at its conclusion. He argued that his statutory right to be accompanied had been breached because he had not been given the opportunity to bring anyone with him.

The Employment Appeal Tribunal disagreed. The right under section 10 Employment Relations Act 1999 only arises where the worker requests to be accompanied. Mr Wolfe had not asked, so there was no breach. The fact that he may not have appreciated the nature of the meeting until it was too late did not change that.

What does the right actually cover?

The statutory right applies to disciplinary and grievance hearings falling within the legislation, including relevant appeals. Where it applies, the worker can choose a work colleague, an appropriately certified or trained trade union representative, or a trade union official. The union does not need to be recognised by the employer, and the worker does not need to be a member.

A companion can address the hearing, put the worker's case and confer with them, although they cannot answer questions on the worker's behalf.

If the chosen companion cannot attend, the worker can propose a reasonable alternative time within five working days.

Legal entitlement and good process are not the same thing

That is perhaps the real lesson from Wolfe. The EAT made clear that section 10 does not require an employer to explain in advance that a meeting is disciplinary or tell the worker that they can bring a companion.

But that does not make a surprise disciplinary meeting good practice.

The Acas Code expects employees to be notified in writing of the allegations against them and of their right to be accompanied before a disciplinary meeting. Failure to follow a fair process can matter significantly when an employment tribunal considers the fairness of a subsequent dismissal.

So, while Wolfe clarifies the legal minimum, it should not become a template for HR practice. Tell employees what formal meetings are about, flag the right to be accompanied clearly and give them a proper opportunity to exercise it.

Sometimes the safest approach is not simply to ask, ‘What does the statute require?’ but ‘What would a fair process look like?’

Equal pay, but not just for sex? Government consults on a major rethink of pay discrimination

Equal pay has always occupied a slightly unusual corner of UK equality law. While the Equality Act 2010 prohibits discrimination because of a range of protected characteristics, the specific equal pay regime is concerned only with sex. It works through an implied “equality clause” or “equality rule”, modifying contractual pay terms where a worker can show that they are doing equal work to a comparator of the opposite sex and the employer cannot show that the disparity is for a material factor which is not sex.

There is no equivalent regime for race or disability. An employee who believes they are being paid less because of race or disability must instead pursue an ordinary discrimination claim, with different rules and remedies.

The Government is now consulting on whether that should change.

Levelling up pay protection

The most significant proposal would effectively extend key features of the equal pay regime to race and disability. Employees could compare themselves with colleagues doing like work, work rated as equivalent, or work of equal value. Crucially, tribunals could modify contractual terms following a successful race or disability pay discrimination claim. In other words, the remedy could go beyond compensation for discriminatory treatment and actually correct the discriminatory pay term.

That would be a significant shift in how race and disability pay discrimination is addressed.

But the consultation goes considerably further. Other proposals include:

• requiring employers to disclose pay information in job adverts or before interview;
• strengthening requirements for equal pay audits and job evaluation schemes;
• reintroducing statutory questionnaires for pay discrimination claims;
• establishing a new Equal Pay Regulatory and Enforcement Unit with potentially substantial enforcement powers; and
• allowing tribunals greater flexibility to extend time limits in equal pay cases.  

There are also proposals addressing outsourcing and some limited circumstances in which hypothetical comparators could be used.

The consultation closes on 27 October 2026. If implemented, these reforms would represent considerably more than an equal pay tidy-up: they could fundamentally reshape the law on discriminatory pay.

Third-party harassment is coming back: are you ready?

A customer harasses a member of your staff. You didn't encourage it, you didn't know it was going to happen and the person responsible doesn't even work for you.

Could your organisation nevertheless be liable?

From 30th October 2026, potentially yes.

New third-party harassment provisions will mean that an employee can bring a claim where they are harassed in the course of their employment by someone such as a customer, client, contractor, service user or business contact and their employer failed to take all reasonable steps to prevent it.

Importantly, there is no “three strikes” rule. Similar legislation that was repealed in 2013 required previous incidents before liability arose. This time, a single incident could potentially be enough.

Think beyond your own workforce

For HR, the important question is therefore: where do our employees come into contact with people whose behaviour we don't directly control?

The obvious examples are hospitality, retail and healthcare. But the risk is much wider.

Employees may encounter contractors on site, entertain clients, attend conferences, work in serviced offices or visit customers in their homes.

Your harassment risk assessment should identify those situations and consider what could reasonably be done about them.

That might include:

• making clear to customers and service users that harassment of staff will not be tolerated;
• including anti-harassment provisions in commercial contracts;
• requiring contractors to remove individuals who behave inappropriately;
• reducing lone working in higher-risk environments;
• providing alarms or code words for employees visiting customers; and
• ensuring employees know they should report harassment by third parties, not simply put up with it as ‘part of the job’.

The fact that you cannot control a customer's behaviour completely does not mean you can do nothing to reduce the risk.

That is likely to be the key distinction under the new regime.

For HR teams, October's changes mean the boundaries of harassment prevention are expanding. Your responsibility for workplace culture and behaviour will no longer stop at your own employees.

Training cost clawbacks: when does repayment become a restraint?

Training repayment agreements are commonplace. An employer invests in an employee’s training; the employee agrees to repay some or all of the cost if they leave shortly afterwards. Simple enough.

But the recent Court of Appeal decision in Geeks Ltd v Watts is an important reminder that there is a point at which protecting your investment can become an unlawful restraint on an employee’s ability to leave.

An £8,108 bill on an £18,000 salary

Mr Watts joined Geeks as a trainee engineer earning £18,000. He signed an agreement recording a “Training Cost Debt” of £8,108, recoverable if he left within 12 months and then reducing gradually over the following 18 months.

He resigned after eight months for a £30,000 job. Geeks wanted its £8,108 back.

The Court of Appeal said no. The clause was an unreasonable restraint of trade and unenforceable.

Importantly, the agreement did not actually prevent Mr Watts from working elsewhere. It even expressly said that it did not restrict other employment. But that did not matter.

The financial consequences of leaving were sufficiently significant to restrict his freedom in practice.

Would your agreement pass the same test?

The judgment provides some useful warning signs for employers. Ask:

• Are you recovering genuine training costs? Geeks included artificially calculated mentoring costs and the employee’s own salaried study time.
• Is repayment proportionate to salary? The Court was influenced by the size of the debt compared with Mr Watts’ relatively low earnings.
• Does the amount reduce fairly over time? Nothing was written off during Mr Watts’ first year.
• When does repayment apply? The clause caught almost every departure except redundancy, including circumstances potentially outside the employee’s control.
• Was there meaningful opportunity to consider the agreement? Bargaining power and the circumstances in which the agreement was signed were relevant.  

The practical message is not that training clawbacks are dead. Far from it. But the more expensive it is for an employee to leave, the more carefully you need to justify why.

Repayment clauses in an employment context are vulnerable to two different attacks on their enforceability:

• That they are a penalty clause (imposing a detriment on an employee for leaving that is out of proportion to the employer’s legitimate interest in recovering its training investment); and
• As in Geeks, that the requirement to repay forms an unreasonable restraint of trade (a real-life deterrent to freedom of movement).

There is a commonality to the measures to be taken to protect a business’s repayment clauses against each of these attacks. In each case, the first step is to flush your repayment clause through the five questions asked above to establish the level of risk. Then make any changes necessary to make sure that any required repayment is reasonable, tapered, and proportionate.

Belief discrimination: where are we now?

The Employment Appeal Tribunal’s recent decision in University of Bristol v Miller is not particularly surprising. But it is a useful reminder of where the law has now landed when an employee’s conduct is rooted in the manifestation of a protected religion or belief.

The starting point is Higgs v Farmor’s School, in which the Court of Appeal confirmed that where an employer treats an employee less favourably because of something they have said or done which is a manifestation of a protected belief (has a close connection to that belief), that treatment will amount to direct religion or belief discrimination unless the treatment is justified. An employer can take action where it is responding to something sufficiently objectionable about the manner in which the belief has been manifested. But, any restriction on the manifestation of a protected belief must be objectively justified. In practice, that means asking whether the employer’s response pursued a legitimate aim and was proportionate.

University of Bristol v Miller

Dr Miller, a Professor of Political Sociology, was dismissed following public comments expressing his anti-Zionist beliefs and strongly criticising named Jewish student groups. The tribunal found his particular anti-Zionist belief was protected under the Equality Act 2010 and that his dismissal amounted to direct belief discrimination.

Importantly, the tribunal did not conclude that everything he had said was protected from sanction. Some language directed at named student groups went beyond manifestation of the protected belief and amounted to blameworthy misconduct.

But dismissal was driven substantially by comments which did manifest his protected belief. The University had therefore restricted that manifestation and needed to justify doing so. It could not: dismissal was disproportionate when a lesser sanction would have sufficed. The EAT upheld that central conclusion.

The HR takeaway

Miller reinforces rather than rewrites the law.

Where alleged misconduct has at its root the manifestation of a protected belief, do not jump straight from ‘this is objectionable’ to ‘this is misconduct’.

Identify precisely what the employee has said or done. Ask whether it is a manifestation of the protected belief. Separate that from any genuinely objectionable manner of expression. Then, consider carefully what legitimate aim the employer is seeking to protect and whether disciplinary action, particularly dismissal, is a proportionate way of achieving it.

After Higgs and now Miller, proportionality should be at the heart of the decision-making process.

And Finally...

The Australian owner of a goat with a serious attitude problem recently posted a hilarious job ad on a local online ‘Goat Group’, explaining why the goat’s workplace relationships had fundamentally broken down. The goat, named Ben, was employed as a weed-whacker and tethered lawnmower.

However, the advert explained that he had elevated himself to the position of Chief Executive Officer of the goat herd, a position which was neither advertised nor offered to him. After issues with his ‘intimidating’ management style, his owner was looking to remove him from his position, citing “irreconcilable differences”. Importantly, from the point of view of fairness, this decision had been reached only after several disciplinary meetings and performance reviews.

As a result of his owner’s tongue-in-cheek job advert, Ben received several new job offers.