June 2026

EHRC publishes revised guidance on single-sex spaces - but employers are still waiting

The Supreme Court has ruled. The EHRC has updated its Code of Practice. And yet, if you are an HR professional trying to navigate single-sex spaces in the workplace, you are still largely on your own.

Last month, the Government laid the EHRC’s draft updated Code of Practice for Services, Public Functions, and Organisations (the Draft Code) before Parliament. It replaces the 2011 Code and incorporates the Supreme Court’s judgment in For Women Scotland Ltd v The Scottish Ministers, confirming that “sex”, “woman” and “man” in the Equality Act 2010 mean biological sex – and that a Gender Recognition Certificate does not change a person’s sex for the purposes of the Act.

So, what does this mean for employers?

In short: not as much as you might hope. The Draft Code covers service providers – not employers. Workplace single-sex facilities are governed separately, under separate parts of Equality Act 2010 and the Workplace (Health, Safety, and Welfare) Regulations 1992. The EHRC has said it “will update its guidance for employers in due course” but has refused to commit to any timeframe.

What should HR teams do now?

Do not wait for the EHRC’s employer guidance before acting:

Draft and adopt a written policy on single-sex facilities, recording the rationale behind any decisions made.
Review the first instance cases which have begun to trickle out in this area. In the most recent of these:Hutchinson and others v County Durham and Darlington NHS Foundation Trust, a policy permitting transitioning employees to use changing rooms in line with their self-declared gender identity (and failing to pause access following a complaint) amounted to harassment related to both sex and gender reassignment. It also amounted to indirect sex discrimination. The two relevant PCPs: (i) allowing access to single-sex changing rooms on the basis of self-declared gender identity; and (ii) prioritising the perceived rights of transgender employees to use facilities aligned with that identity over the rights of other employees to single-sex facilities applied on their face to both men and women. However, the tribunal found they placed women at a particular disadvantage. Women were more likely to experience distress, fear or humiliation when required to share communal changing facilities with a member of the opposite biological sex. The Trust failed to justify the PCPs, and the indirect discrimination claim succeeded.
Document the balancing exercise between your legitimate aim and the impact on affected groups, including trans employees.
Consider the availability of gender-neutral facilities – or the feasibility of introducing these if there are none currently in place.
Assess each situation individually – blanket policies in either direction carry legal risk.

Implied terms by fact and by law: What HR needs to know

When a contract is silent on an issue, the law can step in to fill the gap. This happens in two main ways. Some terms are implied based on what the parties must have intended, and others are imposed automatically by law.

Understanding the difference helps HR teams know what can be managed and what cannot.

First, there are terms implied by fact. These are unwritten provisions that tribunals read into a contract because they are necessary or obvious. The key point is that they are not added just because they seem fair. They must be essential to making the contract work.

For example, if someone is hired into a role that clearly involves driving, it is likely to be implied that they must hold a valid driving licence, even if the contract does not say so. In the same way, certain basic expectations about how a role is carried out may be implied if they are fundamental to the job.

Second, there are terms implied by law. These apply to every employment relationship, whether you include them in the contract or not. You cannot opt out of them.

The most important of these is the duty of mutual trust and confidence. This means both employer and employee must not behave in a way that seriously damages the working relationship without good reason. Other examples include the employee’s duty to act in the employer’s best interests, and the employer’s obligation to provide a safe working environment and comply with minimum legal standards such as pay and working time rules.

What HR should take away:

Some gaps in contracts will be filled, but only where necessary.
Legal duties apply in every case, even if they are not written down.
You cannot rely on the contract alone to define the relationship.

A practical example:
Even if a contract gives wide discretion, using it in an unreasonable or heavy-handed way could still breach the duty of trust and confidence.

In short, not everything needs to be written down to be enforceable. Knowing which rules are implied helps avoid surprises and reduces the risk of disputes.

Protected conversations: are you doing them right?

Most HR professionals have heard of ‘protected conversations’. Fewer know exactly where the protection ends – and that gap can be costly.

Section 111A of the Employment Rights Act 1996 allows pre-termination discussions to be kept out of ordinary unfair dismissal claims. The idea is simple: both sides can speak frankly about settlement without those words coming back to haunt them in a tribunal. In practice, it is rarely that straightforward.

In Gallagher v McKinnon Auto and Tyres, an employee was called to what he believed was a return-to-work meeting, only to be handed a settlement offer and given 48 hours to decide. The EAT held this did not amount to improper conduct – at least in a genuine redundancy context. Telling an employee their role is at risk is not the same as threatening dismissal to coerce acceptance of an offer.

In Tarbuc v Martello Piling Ltd, the EAT confirmed that the tribunal made two errors when concluding that a conversation was ‘protected’ and excluding reference to it from all of the Claimant’s claims. First, it excluded the protected conversation from claims it had no business excluding it from – section 111A only covered the Claimant’s ordinary unfair dismissal claim, not the wages claims or part-time worker rights running alongside it. Second, it failed to look at the full picture when assessing improper conduct: the employee had been approached in a corridor and ushered straight into the meeting without warning or a companion.

The practical lessons are straightforward:

Give reasonable notice of any meeting
Allow a companion where appropriate
Do not assume protection extends beyond unfair dismissal
Train line managers – most problems start there
Document everything, on the basis that records may be disclosable in other claims

When in doubt, take advice before the conversation – not after it goes wrong.

Flexible working refusals: the real risk is not what you think

Turning down a flexible working request feels low risk. The direct compensation under the flexible working regime is capped at eight weeks’ pay. For many employers, that feels manageable. The problem is that a poorly handled refusal rarely stays within those boundaries.

The statutory process is straightforward enough. Employers must handle requests reasonably, consult before refusing, and give a decision within two months. A refusal must rely on one of eight permitted business reasons – things like additional cost, inability to reorganise work, or detrimental impact on performance. Tribunals will not generally second-guess a well-reasoned refusal backed by evidence rather than instinct.

Where things get expensive is when employees bring discrimination or constructive dismissal claims instead.

Indirect sex discrimination is the most common route. Tribunals recognise that women disproportionately carry childcare responsibilities, so a blanket requirement to work full time or attend the office can place them at a particular disadvantage. Unless the employer can objectively justify that requirement, it is vulnerable. In one case, a female estate agent was awarded more than £180,000 after her request to work four days a week post-maternity leave was refused. Compensation for discrimination is uncapped.

Disability discrimination is another exposure. Where the request is connected to a health condition, it overlaps with the duty to make reasonable adjustments – a separate and potentially costly obligation.

Constructive dismissal is also in play where the refusal is handled badly enough to destroy trust and confidence.

The practical steps are these:

Document your reasoning carefully and tie it to a permitted statutory ground
Always consult genuinely before refusing – a tick-box conversation is not enough
Consider childcare and disability angles before finalising any decision
Take legal advice on complex cases before the refusal goes out, not after the claim arrives

Driving change: The Government’s mileage increase explained

The Government’s decision to increase the Approved Mileage Allowance Payment (“AMAP”) rate from 45p to 55p per mile for the first 10,000 business miles marks the first substantive uplift in more than a decade. The previous 45p rate had remained unchanged since 2011, despite sustained increases in fuel prices, insurance costs, vehicle maintenance expenses and general inflationary pressures affecting employees who use their own vehicles for work purposes.

The revised rate, which applies retrospectively with effect from April 2026, is intended to better reflect the true cost of business travel undertaken by employees. Employers should now review and update their mileage and expenses policies promptly to ensure payroll systems, reimbursement processes and employee communications accurately reflect the new statutory position. Businesses may also need to consider whether backdated payments are required for mileage already reimbursed since April 2026.

Whilst some employers may consider reimbursing mileage at rates above the Government-approved thresholds in response to continuing increases in motoring costs, caution should be exercised. Any reimbursement exceeding the approved AMAP rates may create a taxable benefit in kind, potentially resulting in additional tax and National Insurance liabilities for both employer and employee. For that reason, increasing mileage reimbursement above the approved rates is not always the most commercially or tax-efficient solution.

Where employee travel costs continue to rise despite the increase, employers may instead wish to explore alternative measures to reduce unnecessary travel expenditure. Practical options include adopting more flexible and agile working arrangements, increasing reliance on remote meetings, encouraging greater use of public transport, and promoting car-sharing initiatives. Such measures may not only reduce costs but also support wider sustainability and employee wellbeing objectives.

After employment ends: what HR teams must do to avoid a post-employment victimisation claim

Most HR teams have clear processes for managing discrimination risk during employment. Far fewer have an equally clear protocol for what happens after the relationship ends – and that gap can be costly.

The reference trap

References are the most obvious danger area. Ong v Aberystwyth University [2025] resulted in a compensation award exceeding £260,000 after a reference disclosed the existence of tribunal proceedings, causing a conditional job offer to be withdrawn. The Tribunal described the conduct as “irresponsible and retaliatory”. The lesson is unambiguous: references provided after litigation or discrimination complaints must never reference disputes, proceedings, or grievances. The content should be factual, objective and limited to matters that would apply to any former employee.

Practical steps for HR

The following measures should form part of any HR protocol where a former employee has raised a discrimination complaint or brought tribunal proceedings:

References: remove the decision entirely from any line manager or individual involved in the dispute; route all references through HR or legal
Content: confine references to dates of employment, job title and, where appropriate, job performance – nothing more
Internal communications: treat correspondence with the former employee with the same objectivity you would apply during live employment; resentment expressed in writing creates evidence
Escalation: any request for a reference, regulatory report or other communication relating to a former employee involved in proceedings should be escalated before it goes out
Training: ensure managers understand that the Equality Act does not switch off at termination

Post-employment claims are preventable in most cases. A clear protocol, applied consistently, is the most effective safeguard available.

Tesco Stores v Element: Defining "work" and reshaping the evidential landscape in Equal Value claims

Equal pay claims are expensive, complex, and have a habit of running for years. A recent Court of Appeal decision involving Tesco is a timely reminder that the evidence you already have on file could be more important than you think.

The basics

An equal pay claim arises where an employee of one sex is paid less than a comparator of the opposite sex, and both are doing the same work, “like work,” or work of equal value. The employer can defend the claim by showing the pay gap is down to a genuine material factor unconnected to sex – but that defence only comes into play once the claimant has established that the work is of comparable value in the first place. That threshold question is often where the real battle is fought.

What happened in Tesco?

Around 34,000 predominantly female store workers claimed their work was of equal value to that of male colleagues in Tesco’s distribution centres. At a 36-day hearing, the employment tribunal set aside the detailed witness evidence and job descriptions provided by both parties, and focused instead on Tesco’s own training manuals as the most objective evidence of what each job actually required. The Court of Appeal upheld that approach.

The Court confirmed that “work,” for equal pay purposes, is what the employer contractually requires – not simply what employees happen to do day-to-day.

What this means for HR

If you are facing, or want to prepare for, an equal pay challenge, act early:

Audit your training manuals and standard operating procedures now. They may become a central exhibit.
Assess whether the roles in question are tightly regulated and documented. If they are, that documentation is likely to carry significant evidential weight.
Consider whether a strong documentary picture reduces the need for costly live witness evidence further down the line.

The Fair Work Agency: Should HR be worried?

The Fair Work Agency (FWA) officially launched on 7 April 2026, bringing together several existing employment enforcement bodies under one roof. Predictably, its arrival has generated concern among HR teams about increased inspections, tougher penalties and greater scrutiny.

But before anyone starts panic-updating every policy in sight, it is worth remembering one important point: the FWA does not create new employment rights. Instead, it changes how existing rights are enforced.

So, what actually changes?

The FWA consolidates enforcement powers previously spread across bodies including HMRC’s National Minimum Wage unit, the Gangmasters and Labour Abuse Authority and the Employment Agency Standards Inspectorate.

Its remit already includes:

National Minimum Wage enforcement
agency worker regulation
modern slavery enforcement
unpaid tribunal awards

And from 2027, it is expected to take on enforcement of:

Statutory Sick Pay
annual leave and holiday pay

Why HR should pay attention

For many employers, the biggest change is not the law itself — it is the likelihood of more coordinated and proactive enforcement.

Historically, many breaches only came to light after an employee brought a tribunal claim. The FWA is intended to work differently. It has investigatory powers, the ability to conduct inspections and the power to request extensive employment records.

Even employers outside traditionally “high-risk” sectors should not assume they are immune. Complaints from workers, poor record-keeping, or inconsistent practices could all attract attention.

Transitional year – but not a free pass

The Government has described 2026–27 as a transitional period while the FWA becomes fully operational.

That may buy employers some breathing space – but it also creates an opportunity. HR teams should use this period to identify weak spots before enforcement activity ramps up.

Practical takeaway

Rather than treating the FWA as a reason to panic, employers should see it as a prompt to revisit core compliance areas:

payroll practices
holiday pay calculations
SSP processes
worker status
record retention

The employers most likely to struggle under the new regime are not necessarily those acting deliberately unlawfully – but those relying on outdated processes, inconsistent practices or incomplete records.

Breaking the silence: Government consults on NDA safeguards

The Government is consulting on new rules to stop the misuse of non-disclosure agreements (NDAs) in workplace harassment and discrimination cases. The consultation closes on 8 July, with new regulations expected next year.

Under the proposed changes in the Employment Rights Act 2025, any agreement stopping a worker from speaking about harassment or discrimination would generally be unenforceable. The Government says the aim is to tackle a “culture of silence and impunity” in workplaces.

The proposals would apply to employment contracts, settlement agreements and COT3 agreements reached through Acas. However, some confidentiality clauses may still be allowed through what the Government calls “excepted agreements”.

To qualify as an excepted agreement, workers would need to receive independent legal advice in writing before signing. They would also need to give written consent. Another proposal is a mandatory cooling-off period, currently suggested as 14 days, allowing workers to change their minds and withdraw from the agreement without penalty.

Even where an NDA is valid, workers would still be allowed to discuss harassment or discrimination with certain people and organisations. These could include regulators, doctors, lawyers, trade union representatives and close family members. The Government is also considering whether workers should be allowed to discuss matters with prospective employers.

The consultation also asks whether the rules should be extended beyond employees to include agency workers, secondees, and people in work experience or training placements.

For HR teams, these proposals could have a major practical impact. Employers may become less willing to settle disputes confidentially if confidentiality cannot be guaranteed, which could lead to more claims being litigated. Cooling-off periods could also make it harder to finalise last-minute settlement agreements before tribunal hearings.

And finally…

after ‘quiet quitting’, ‘coffee badging’ and ‘mouse jiggling’, we now have a new trending HR buzz phrase: ‘loo lurking’. AI career tool company Kickresume explains that the phrase refers to employees hiding in toilets for a few moments of peace when they feel overwhelmed, anxious or emotionally drained at work. According to Kickresume’s recent research, 44% of workers admitted taking what they described as ‘bathroom breaks for peace’.

There are several ways that HR could respond to these findings:

They could ignore it – the latest in a long line of workplace buzz phrases based on fairly limited research.
They could view it as a productivity issue which, if present in their own workplace, needs to be addressed. Policies on breaks could be reviewed to limit the length of bathroom visits (subject, of course, to the need to make reasonable adjustments for those who are pregnant or have specific health issues) and employees could be made aware that bathroom visits are being monitored for misuse. Nothing says ‘positive workplace culture’ quite like a manager with a stopwatch outside the toilets.
They could look a little deeper and consider whether, behind the buzz phrase, there may be a genuine issue of workplace burnout which should be tackled with compassion rather than discipline. After all, if employees are seeking refuge in the cubicles for a few moments of calm, the toilets may not be the real problem.