In Kankanalapalli v Loesche Energy Systems Ltd, the Employment Appeal Tribunal (EAT) confirmed that a binding contract may be formed before employment starts. Standard conditions such as references or right to work checks may not prevent that. Where no notice terms are agreed, employers may still be required to give (and pay) reasonable notice to terminate.

What happened in this case?

The Claimant was offered a project manager role on 23 September 2022, with a proposed start date of 1 November 2022. As is standard practice, the offer was stated to be subject to satisfactory references, a right to work check, and a six-month probation period. No notice provisions were set out in the offer. 

On 26 September 2022, the employer confirmed additional terms, including a £3,000 relocation contribution repayable if the Claimant left within 12 months, and suggested that he secure a 12-month tenancy. The Claimant accepted the offer the same day and indicated that he would sign and return the relevant documents shortly.  The next day the employer replied that it looked forward to him joining them.  The Claimant began onboarding, providing personal details and referee information. On 6 October 2022, the employer requested right to work documents, which were provided that day.

On 7 October 2022, the employer postponed the start date to 3 January 2023 due to a delay in a client contract. The Claimant queried how he would be paid in the meantime, having already made travel arrangements.  Then on 11 October 2022, the employer withdrew the job offer due to delays in the project.  It proposed a new conditional offer dependent on a “notice to proceed”.  

The Claimant brought a breach of contract claim. The Employment Tribunal found that the offer had been accepted by the Claimant’s email of 26 September 2022.  However, it held that the conditions (namely the satisfactory references and right to work check) had not been fulfilled.  This meant that the offer was conditional at the point it was withdrawn, meaning no binding contract was in place.  Alternatively, if a contract was in place, there was an implied term that as the Claimant had less than one month’s service, the employer would not have been required to give him any notice. This was on the basis of the standard terms and conditions that the employer said it would have given to the Claimant. 

The claim was dismissed.  The Claimant appealed to the EAT.

What was decided?

Were the “subject to” terms conditions precedent or conditions subsequent?

The conditions in question were the right to work checks, the employment references, and a six-month probation period.

The EAT found that the Tribunal had taken too narrow an approach in treating the conditions as “conditions precedent” i.e. conditions that prevent a binding contract from forming until they are fulfilled. Instead, the conditions relating to references, right to work and probation were properly characterised as “conditions subsequent” i.e. a binding contract had formed but could be terminated if the conditions were not met.

In reaching that conclusion, the EAT emphasised that the key terms of the role had been agreed and that both parties had begun taking steps towards the start of employment, including arrangements for his security pass. Further, the referee form stated that “I understand that my employment may be terminated without…satisfactory references”, rather than providing that there was no contract until these had been supplied.  It also placed weight on the inclusion of a probationary period, which could only operate once employment had begun.

Taken together, this pointed towards a binding contract already having been formed, with the conditions operating as potential grounds for termination rather than barriers to formation.

Separately, the EAT noted that if the conditions had been conditions precedent, this did not mean there was an unrestricted right to withdraw the offer.  Instead, the correct approach would have been for the Tribunal to have considered whether the employer was under an obligation not to withdraw before the date on which the conditions should have been fulfilled.

Was a notice term implied?

The EAT held that, in the absence of an express notice provision, a term of reasonable notice should be implied, and that this could exceed the statutory minimum period under the Employment Rights Act 1996.

The employer had referred to its standard conditions which offered one week’s notice in the probationary period, but no notice if the employee has less than one month’s service.  However, the EAT said internal practices, and other employees’ contracts, did not amount to a binding custom and practice capable of supplying a contractual term.

What was reasonable notice?

The EAT said that it is not the case that notice is presumed to start from zero and that there must be a reason to increase it. Section 86 of the Employment Rights Act 1996 (which sets out statutory notice requirements) only contains minimum thresholds – this should not be taken as meaning that they apply in the absence of any other provisions. What is “reasonable notice” may exceed those minimums.

On the facts, the EAT concluded that three months’ notice was reasonable.  This reflected the seniority of the role, the length and nature of the recruitment process, and the fact that the Claimant was to relocate. The employer’s suggestion that the Claimant commit to a 12-month tenancy was also significant. The EAT rejected the employer’s argument that this should have been reduced during the probation period – this had never been suggested to the Claimant.

In those circumstances, withdrawing the offer without notice amounted to a breach of the implied term to give three months’ notice.

Other claims

The EAT rejected the Claimant’s claims for holiday pay and the relocation payment. Employment had not commenced, so no entitlement to holiday pay arose. The relocation payment was conditional on starting employment and was, therefore, not payable.

The EAT substituted judgment in favour of the Claimant for three months’ notice pay.

What does this mean for employers?

This decision is a useful reminder that “subject to” wording is not necessarily enough to prevent a contract of employment from arising.  Where an offer sets out the key terms and both parties proceed on the basis that employment will begin, a Tribunal may find that a binding contract is already in place.

What are the key practical takeaways for employers?

• Be clear about the impact of conditions: state clearly whether any conditions prevent a contract forming or apply after formation and set deadlines for satisfying them.  

• Include notice provisions in offer letters: ensure offer letters specify notice rights that apply once a contract has formed, including any reduced notice that applies until the end of any probationary period.

• Manage the process carefully: onboarding steps and communications can indicate that a contract is already in place so be careful with the language used.  HR should check any communications to be sent from managers.

• Avoid relying on informal practice: internal norms or other employees’ contracts will not usually be enough to imply terms.

Kankanalapalli v Loesche Energy Systems Ltd

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk), Rose Lim (RoseLim@bdbf.co.uk) or your usual BDBF contact.

The Department for Business and Trade has launched a wide-ranging review of the TUPE regulations. Employers have until 1 July 2026 to make their voices heard.

What is the background?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 – known as TUPE – sit at the heart of almost every business sale, merger, outsourcing arrangement and service provision change. They are also, in the experience of most HR professionals and in-house teams, among the most complex and demanding pieces of employment legislation to navigate in practice.

On 8 April 2026, the Department for Business and Trade (DBT) published a Call for Evidence on TUPE as part of the Government’s broader “Plan to Make Work Pay” programme. The review follows hot on the heels of the Employment Rights Act 2025 and signals that further legislative change is on the agenda.

The Call for Evidence is explicitly framed around two, sometimes competing, objectives: making TUPE easier for businesses to operate, while simultaneously strengthening protections for employees who are subject to a transfer. Ministers have been candid that they want both outcomes and are seeking evidence to understand whether the current regulations deliver either goal satisfactorily.

At this stage, however, the Government is gathering information and experience from employers, employees, trade unions, legal practitioners and business representative bodies.  Depending on the results, it may go on to develop policy proposals and consult on those.

The six areas under scrutiny

The Call for Evidence covers six broad areas:

The current framework

The Government asks whether the existing framework strikes the right balance between employer flexibility and employee protection, covering terms and conditions, consultation rights, collective agreements and pensions. Notably, occupational pension benefits tied to old age, invalidity or survivors remain exempt from automatic transfer under TUPE. The review invites views on whether that exemption remains appropriate, signalling potential change in this area.

Identifying a “relevant transfer”

One of the most persistent practical difficulties with TUPE is the threshold question: does it apply at all? The definition of a “relevant transfer” (i.e. an economic entity retaining its identity, or when a service transfers to a new provider) has generated extensive case law and significant uncertainty, particularly in complex outsourcing arrangements. The Government asks how clear the current test is in practice and whether it needs to be reformed.

Process and practicalities

The Call for Evidence asks about the areas where employers experience difficulty in the TUPE process: planning, employee liability information, consultation, terms and conditions post-transfer, and/or situations involving insolvency. These are the friction points where legal disputes commonly arise, and where clearer rules could benefit business.

Variation of terms and conditions

Under the current rules, employers cannot vary terms and conditions where the reason for doing so is the transfer itself.  Variations are only permissible for economic, technical or organisational (ETO) reasons entailing changes in the workforce and the employee agrees to the change, or in certain other limited circumstances.

In practice, the bar on harmonisation is one of the most commercially significant features of TUPE. Acquiring businesses frequently find themselves managing workforces on incompatible terms for years after a transfer, creating both operational complexity and employee relations difficulties. The Government is asking whether this framework is clear, fair and proportionate.

Guidance and support

The review asks how useful the existing Government and Acas guidance is in practice. This reflects a longstanding criticism from employers and practitioners that the guidance does not give businesses the practical direction they need when navigating novel or complex transfers.

Cost and impact

The Government is seeking quantitative evidence on the cost burden of TUPE compliance, both direct costs such as legal advice, HR resource and restructuring costs, and indirect ones including delay to transactions and difficulty in workforce planning.

What does this mean for employers?

It would be premature to predict specific reforms at this stage. What is clear is that the Government is open to relaxing some aspects to facilitate smoother transactions, while tightening others to strengthen employee protections.

Employers should be particularly alert to the possibility of changes to the ETO framework, which currently provides the main route for post-transfer harmonisation of terms. Reform to the service provision change rules is also plausible. Any tightening of the information and consultation obligations, or of the protective award exposure for non-compliance, would have immediate and significant financial consequences for employers involved in transfers.

It is also worth setting this review in its broader legislative context. The Employment Rights Act 2025 has strengthened employee rights across multiple areas. Any TUPE reform is likely to be developed in that spirit.

Responses may be submitted online, by email to tupepolicy@businessandtrade.gov.uk, or in writing to the TUPE Policy Team at the Department for Business and Trade, Old Admiralty Building, London SW1A 2DY. The response deadline is 11.59pm on 1 July 2026.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk), Rose Lim (RoseLim@bdbf.co.uk) or your usual BDBF contact.

On 8 April 2026, the Government published its response to the completed consultation on the new rights of trade unions to access workplaces, as well as a draft statutory Code of Practice on the practicalities of this right (the Code) and an accompanying second consultation on that Code.

These consultations and the Code aim to shape the substance of the rights given to trade unions under Section 59 of the Employment Rights Act 2025 and will inform regulations and any secondary legislation which will determine how the rights take effect.

The new rights of access will affect all employers, regardless of whether their workplace currently has a union presence.

Progress to date

Under the new framework, trade unions will have new rights to access workplaces and engage with workers in order to meet, recruit and support them or facilitate collective bargaining. This includes both physical and digital access. Unions are expected to work with employers to agree an “access agreement” for this purpose, which will then be recorded by the Central Arbitration Committee (CAC). If they cannot agree, either party can make a referral to the CAC to determine whether (and how) access should be granted.

The Government’s initial consultation covered the practicalities of making an access request, notifying the CAC, the length of negotiation periods and the factors that the CAC will consider when assessing requests. For information on the initial consultation, which ran from 23 October 2025 to 18 December 2025, please see our coverage here.

Response, the draft Code and consultation

The Government has now published their response to the first consultation along with the draft Code, which takes account of the proposals that the Government is taking forward as described in their response.

The Code provides practical guidance for making and responding to a request, how to facilitate engagement constructively and how the CAC will exercise its powers if the employer and union cannot agree. It is intended to cover both the new primary legislation under Chapter 5ZA of the Trade Union and Labour Relations (Consolidation) Act 1992 (as inserted by the Employment Rights Act 2025) and new proposed secondary legislation.

The key impacts to note of the Code in its current form are as follows:

• Requests will need to be made in writing, with email as the preferred option but with flexibility to use post if appropriate. If two or more unions make a joint application for access, they should prepare the request together and implement access arrangements jointly.

• There will be a standardised template for requesting access, with a baseline set of information requirements for the union to provide. There will be a similar template and set of information requirements for the employer’s response to a request, and if the request is rejected the employer must make clear which elements are rejected and provide relevant reasons. Standard templates will also be provided for notifications to the CAC of successful access agreement, and for notifying variation and/or revocation of agreements.

• As part of any rejection, the employer must also specify if they have received an access request from any other union, or if they are engaged in negotiations with another union. The employer must also provide contact details, which we anticipate will likely be for the purpose of discussing the rejection.

• The timelines for responding to a request, the negotiation period and referring to the CAC have all been extended, which the Government states is aimed at balancing the need for timely access with the practicalities of requests for both employees and unions. The relevant periods will be:

  • 15 working days for an employer to consider and respond to a request, which can be extended by agreement with the union;
  • 25 working days for negotiation between the union and employer; and
  • 55 working days for the union to make a referral to the CAC (i.e. 15 working days following the conclusion of the negotiation period).

• Guidance will cover the practicalities of access, such as who will be permitted to attend meetings, use of workplace facilities and accounting for non-typical working patterns. Employers and unions should negotiate in good faith, and guidance will set out the process for continuing negotiations beyond the initial period.

• A minimum of 5 working days’ notice must be given before the first instance of access takes place, and agreements must have an expiry date (maximum two years from the date on which they come into force). Agreements can be extended beyond this date through a joint application to the CAC.

• The CAC will not grant access to employers with fewer than 21 workers, however in future this may be adjusted so that the size-based exemption does not apply to workplaces covered by a statutory national bargaining framework (such as the national bargaining frameworks for adult social care and school support staff). There will also be some other narrow safeguards to require refusal of access, for instance if doing so would prejudice the prevention, detection or prosecution of crime.

• The CAC will have a set list of circumstances where it is otherwise reasonable for access not to be granted, meaning that a request will be denied. These include the presence of a recognised union already in the workplace (although this will not be a default), multiple requests for access from different unions, or any ongoing statutory recognition process.

• Employers will be required to take reasonable steps to facilitate access but should not be required to make any significant changes to do so, and the preference is for access to be facilitated using existing facilities and systems. The CAC may consider it reasonable to refuse access if it would require excessive resources from the employer (such as new meeting spaces or IT systems, or material operational disruption).

• Model” terms of access agreements will be set out to use as a reference point when drafting an agreement. These are not mandatory to use, however consistency with them will mean that a request for an access agreement is more likely to be granted by the CAC.

• Employers and unions will be encouraged to resolve disagreements before taking formal action. The CAC will have the power to issue penalties for breach of an access agreement, taking account of factors such as the gravity and duration of a breach and any reasons. The maximum penalties will be:

  • Up to £75,000 for a first penalty;
  • Up to £150,000 for a second penalty, reflecting repeated non-compliance under the same access agreement; and
  • Up to £500,000 for a third breach under the same access agreement (potentially issued repeatedly if non-compliance continues).

The Government has opened a new consultation on the Code’s guidance and the draft templates, seeking views on whether the proposals are sufficiently clear, detailed, appropriate and workable. This will close on 20 May 2026, after which the Government plans to introduce secondary legislation into Parliament along with the final Code of Practice, expected to take effect in October 2026.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Rose Lim (RoseLim@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact. 

BDBF Partner Claire Dawson will be attending the ABA International Labor and Employment Law Committee Midyear Meeting in Prague (3-7 May 2026).
 

The meeting brings together top employment lawyers, in-house counsel and thought leaders from across the globe to explore the most pressing and cutting-edge issues in international labour and employment law.

On 23 April 2026, BDBF Partner Samantha Prosser will be speaking at “Discrimination: The Law and Strategy” a webinar with the Employment Lawyers Association (ELA).

The course will explore the practical issues of running discrimination claims, and what strategies can be used for different types of claims.

Samantha will be discussing the claimant perspective, with a focus on assessing the claim and other pre-litigation steps.

Register here.

BDBF announces the well-deserved promotions of Esmat Faiz and Emma Burroughs to Senior Associate.

These promotions recognise their talent and the important role they play in delivering exceptional results for our clients. At BDBF, we recognise that nurturing and growing talent is key to retaining BDBF’s longstanding position as a leading employment law firm.

Emma advises employees and employers across the full spectrum of employment law, with particular strength in high-stakes disputes. She combines sharp legal acumen with strategic focus guiding clients to positive outcomes. Emma has significant experience of litigating in the Employment Tribunal and High Court, including bonus disputes and more recently an interim relief application which was widely reported across the financial press. 

Esmat is an experienced employment litigator with years of experience advising both employees and employers on complex workplace issues. Clients value her legal expertise, empathy and ability to deliver clear advice that achieves their objectives, whether through negotiation or in the Employment Tribunal.

BDBF Managing Partner Gareth Brahams, said “Esmat and Emma have consistently demonstrated the highest levels of skill, dedication and client care. They embody everything we value at BDBF: technical excellence, commercial insight and a genuine passion for helping clients navigate complex employment issues. I am extremely proud of their achievements and look forward to seeing them continue to excel in their new roles as Senior Associates.”

Various employment law changes are coming into force in April 2026.  Our at-a-glance guide rounds them up and also links to BDBF briefings where you can find out more details about all of the changes.

DateReform1 April 2026

• Increase to the National Minimum Wage rates: Annual increase to the National Minimum Wage rate, with the National Living Wage rate for those aged 21 and over increasing from £12.21 per hour to £12.71 per hour.  You can view a table with all the updated rates here.

6 April 2026

• Bereaved Partner’s Paternity Leave Regulations 2026: Regulations come into force, extending the period of available leave for bereaved partners to 52 weeks rather than the usual two weeks.  You can read more about this reform here.
• Increase to compensation limits, statutory payment rates and National Minimum Wage rates: Annual increases will be made to Employment Tribunal compensation limits and to the statutory rates of maternity pay, adoption pay, paternity pay, shared parental leave pay, neonatal leave pay, parental bereavement pay and Statutory Sick Pay (SSP).  You can view a table of the updated rates and limits here.
• Employment Rights Act 2025 reforms: The first wave of reforms will come into force as follows:
  • SSP: SSP will be payable from the first day of sickness (rather than the fourth) and the requirement for the employee to earn at least the lower earnings limit will be removed.
  • Holiday pay records: There will be a new requirement for employers to keep records demonstrating compliance with worker annual leave and pay entitlements for six years.  Failure to comply will be a criminal offence punishable by a fine.
  • Collective consultation – protective award: The maximum protective award for failure to collectively consult will rise from 90 to 180 days for dismissals taking place on or after 6 April 2026.
  • Whistleblowing: Sexual harassment will become a standalone category of whistleblowing malpractice.
  • Paternity Leave: Paternity leave will become a Day 1 employment right and may be taken after a period Shared Parental Leave without being lost.
  • Parental Leave: Parental Leave will become a Day 1 employment right.
  • Equality action plans: Voluntary publication for employers with 250+ employees.  You can read more about the Government’s guidance on this here.

You can read more about each of these reforms in our Guide to the Employment Rights Act 2025 here.

7 April 2026

• Fair Work Agency: The Fair Work Agency will be established and have responsibility for enforcement of the following areas:
  • National Minimum Wage;
  • SSP;
  • holiday pay;
  • regulation of employment agencies and businesses;
  • the unpaid Employment Tribunal financial penalties scheme;
  • the licensing of gangmasters;
  • section 1 of the Fraud Act 2006; and
  • parts 1 and 2 of the Modern Slavery Act 2015.

It is currently unclear when the Agency’s enforcement powers will come into force.  You can read more about the Fair Work Agency in our Guide to the Employment Rights Act 2025 here.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk), Rose Lim (RoseLim@bdbf.co.uk) or your usual BDBF contact.

In April 2026, increases will be made to the maximum compensation limits for certain Employment Tribunal awards, and to statutory pay and national minimum wage rates.  Our handy at-a glance table sets out the new figures that will apply from April 2026 to April 2027, alongside the previous year’s figures.

Compensation limits

Maximum award	6 April 2025	6 April 2026
A “week’s pay”	£719	£751
Breach of right to be accompanied to a disciplinary or grievance hearing (up to 2 weeks’ pay)	£1,438	£1,502
Unfair dismissal – maximum basic award	£21,570	£22,530
Unfair dismissal – compensatory award	£118,223	£123,543 (but will be uncapped from 1 January 2027)
Unfair dismissal – failure to reinstate or reengage (26 to 52 weeks’ pay)	£18,694 – £37,388	£19,526 – £39,052
Redundancy – maximum statutory redundancy payment	£21,570	£22,530
Redundancy – failure to collectively consult	90 days’ gross actual pay	180 days’ gross actual pay (for dismissals taking effect on or after 6 April 2026)
Contracts – failure to give written particulars of employment (2 to 4 weeks’ pay)	£1,438 – £2,876	£1,502 – £3,004
Contracts – breach of contract claim in the ET	£25,000	£25,000
Flexible working breaches (up to 8 weeks’ pay)	£5,752	£6,008
TUPE – failure to inform and consult	13 weeks’ gross actual pay	13 weeks’ gross actual pay
Discrimination – injury to feelings awards (the “Vento” bands)	Lower band:  £1,200 – £12,100	Lower band:  £1,300 – £12,600
	Middle band: £12,100 – £36,400	Middle band: £12,600 – £37,700
	Upper band: £36,400 – £60,700	Upper band: £37,700 – £62,900
	Exceptional cases: £60,700+	Exceptional cases: £62,900+

Statutory payments for time off work

Weekly pay at the prescribed rate	6 April 2025	6 April 2026
Maternity pay (first 6 weeks at 90% of normal pay and up to 33 weeks at the prescribed rate)	£187.18	£194.32
Adoption pay (first 6 weeks at 90% of normal pay and up to 33 weeks at the prescribed rate)	£187.18	£194.32
Paternity pay (up to 2 weeks)	£187.18	£194.32
Shared parental pay (up to 39 weeks less any weeks of SMP, MA or SAP claimed)	£187.18	£194.32
Parental bereavement pay (up to 2 weeks)	£187.18	£194.32
Neonatal care pay (up to 12 weeks)	£187.18	£194.32
Statutory sick pay	£118.75	£123.25

National minimum wage

Hourly rate	1 April 2025	1 April 2026
National Living Wage (age 21+)	£12.21	£12.71
Age 18-20	£10.00	£10.85
Age 16-17	£7.55	£8.00
Apprentices	£7.55	£8.00

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk), Rose Lim (RoseLim@bdbf.co.uk) or your usual BDBF contact.

In Madden v Commissioner of Police of the Metropolis, the Employment Tribunal concluded that an employee with ADHD was unfairly dismissed and discriminated against for making jokes containing sexual innuendos, as his employer had failed to consider the impact of his condition before making its decision.

What happened in this case?

Mr Madden was employed as a Quality Control Officer with the Police from November 2001 and had a clean disciplinary record until his dismissal in February 2024. He suffered from stress and anxiety from October 2021 onwards, including a mental health crisis, and was referred to Occupational Health by his employer. Mr Madden received counselling and was subsequently diagnosed with ADHD in October 2022, as well as several conditions related to his ADHD which are known to cause significant difficulties with interpersonal relationships.

In September 2022, Mr Madden’s line manager emailed him raising concerns about several messages from him which she felt had been “forward”. She acknowledged that he was having counselling and explained that whilst she was happy to have a laugh, she felt a line had been crossed. In subsequent emails, Mr Madden explained that whilst he had meant the comments as a joke, he could not risk this misunderstanding happening again so would keep things work-related in future. The Tribunal later acknowledged that, from this point on, the relationship remained on a more professional footing.

In October 2022, Mr Madden shared his diagnostic report with his manager, and in November 2022 they discussed the fact that he would not yet be able to start medication for his ADHD until his high blood pressure was under control.

In April 2023, Mr Madden had several allegations against him brought to his attention by an unexpected Teams call. He was referred to a message that he had sent to a female colleague about a “joystick” but was not given details of any of the other allegations. Mr Madden responded in writing apologising for the message, which he explained had been sent outside of work, noting that his ADHD blurred boundaries of what might be appropriate and caused impulsive behaviour.

Mr Madden was subsequently investigated in relation to allegations of inappropriate behaviour towards several female colleagues, specifically unwanted attention, inappropriate conversation and comments containing sexual innuendo.

During the investigation, Mr Madden explained that only one of the colleagues (his manager) had raised concerns with him and that he had stopped making jokes with her after this. He had considered the colleagues to be friends and joked with them as he would in his personal life, but having accepted that he may have interpreted this incorrectly, he was mortified to have upset them. Overall, Mr Madden was remorseful and accepted responsibility for his actions but asked that they be viewed in the context of his ADHD, which caused impulsive speaking / typing and difficulty with social cues and interactions. He also provided his diagnostic report.   

Despite their original investigative report stating there was not a sufficient case for gross misconduct (only misconduct), Mr Madden’s employer proceeded with a disciplinary process for potential gross misconduct. He again raised the impact of his ADHD and, by this point, he also had engaged a solicitor who sent a letter to the case manager for the disciplinary hearing. This letter set out Mr Madden’s health conditions, the impact of the prolonged disciplinary process, the causal link between the conduct and his ADHD, potential premeditation of the process and a range of procedural flaws. It also highlighted his 22-year unblemished record and that because he struggled to pick up on social cues, the incidents could largely have been avoided if the concerns (which were by this point historic) had been raised earlier. This letter from his solicitor, plus a supporting statement from his psychiatrist, were not included in the disciplinary bundle and were not before the disciplinary panel.

The hearing took place by way of written submissions as a reasonable adjustment for Mr Madden, and his responses were read out to the panel by the Chair. The panel unanimously decided that Mr Madden should be dismissed without notice, concluding that the behaviour was a sufficiently serious breach of the expected standards that the breakdown in confidence was irretrievable. They did not consider the risk of recurring behaviour or mention Mr Madden’s disability.

Mr Madden appealed his dismissal, providing additional evidence from his original diagnosing psychiatrist, as well as again sending both the letter from his solicitor and supporting psychiatric statement. His employer sought Occupational Health advice and made the adjustment of permitting a virtual appeal hearing with his wife attending as companion, as well as permitting written answers to questions. The appeal was unsuccessful, with the Appeal Chair noting that they were satisfied that medical evidence had been properly considered by the original panel and that the new evidence did not change this.

Mr Madden therefore brought claims under the Equality Act 2010 (EqA) for a failure to make reasonable adjustments (Section 20 and 21), discrimination arising from disability (Section 15) and indirect disability discrimination (Section 19). He also brought a claim for unfair dismissal. It was accepted by the employer that his condition amounted to a disability under Section 6 EqA.

What was decided?

The Employment Tribunal upheld Mr Madden’s claims of unfair dismissal and of a failure to make reasonable adjustments on the following grounds:

• With regards to unfair dismissal, there had been several elements of substantive and procedural unfairness in the dismissal process rendering it unfair. In particular, the Tribunal considered:

  • There had been significant delays in the process, which had caused substantial distress to Mr Madden.
  • The employer had failed to offer virtual attendance (with his wife permitted to be present) as an adjustment at the original disciplinary stage, rather than just on appeal. The Tribunal concluded that there was no good reason why this wasn’t originally offered, it was unreasonable not to have done so, and that only permitting written attendance deprived Mr Madden of the ability to challenge evidence and present his case.
  • The employer had failed to consider the solicitor’s letter and psychotherapist’s statement at the disciplinary hearing, which had set out his case clearly and explained the behavioural work that Mr Madden had undergone in recent months. The Tribunal considered that these could have altered the outcome, particularly in a case where the investigative report had not found sufficient evidence for gross misconduct. This rendered the substantive decision unsafe.
  • There had been no consideration of Mr Madden’s disability prior to disciplinary action (contrary to the employer’s own standard operating procedures) and the lack of reference to this in the minutes of the hearing meant it was likely that this was given little, if any, weight.
  • The impact on the complainants had been exaggerated in the investigative report compared with their actual evidence, and this factual inaccuracy was carried through to the disciplinary panel’s reasoning.
  • There had been no actual reputational damage evidenced, so the panel’s purported concern about potential damage was purely speculative.
  • The appeal had not rectified these defects as they had not conducted any form of rehearing, meaning they couldn’t have balanced the conduct and mitigation to the extent required.

The Tribunal therefore concluded that whilst there had been a genuine belief in misconduct after a proportionate investigation, in all the circumstances of the case it was not fair and reasonable (or within the band of reasonable responses) to have dismissed Mr Madden.

• The Tribunal considered that Mr Madden’s struggle to communicate with colleagues and adhere to social norms arose in consequence of his disability (ADHD). They concluded that the comments he had made were an element of this, as his social boundaries were blurred and he did not appreciate that his actions were inappropriate in a workplace (or realise their potential impact). His dismissal for the comments in question was therefore unfavourable treatment because of something arising from his disability. This could not in their view be justified with reference to the legitimate aims relied on by the employer, which included appropriate management of resources and effective management of employee behaviour (including upholding relevant standards).  

However, the Tribunal did not find that the employer’s action amounted to a failure to make reasonable adjustments or indirect discrimination. In particular:

• It was not clearly established that the employer had a practice of not considering ADHD or making sufficient reasonable adjustments for employees in gross misconduct disciplinary processes.

• It would not have been a reasonable adjustment, as argued by Mr Madden, to allow him to be represented by a proxy at the disciplinary hearing. This was not something that was permitted by the employer and, despite any disadvantage, it was not reasonable to expect them to do so.

The remedy judgment for the Tribunal’s decision has not yet been published.

What can employers learn from this case?

This decision highlights the real issues that employers can encounter if they fail to give proper attention to an employee’s disability during a disciplinary process.

Neurodiverse conditions, such as ADHD, are not automatically classed as disabilities under the EqA 2010. Each employee’s circumstances will therefore be subject to the usual test of whether the condition causes an impairment that has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities. However, where an employer becomes aware of an employee having been diagnosed with a condition, it will likely be wise to approach with caution and assume that the employee may qualify for legal protection.

During a disciplinary process (or by analogy, any grievance or other formal process), employers dealing with a neurodiverse employee should consider the following:

• Employment-related decisions will always be highly fact-specific, and Tribunal cases such as these do not mean that employers can never dismiss employees who have a disability. They nevertheless serve as a helpful reminder that employers must always pay proper attention to employees’ disabilities, and document this appropriately. This applies both to the disciplinary process that they follow (and any adjustments that the employee might need to that process), and the substantive decision on the conduct and appropriate sanction. Taking occupational health advice at the earliest opportunity can really help to inform this assessment, as this ensures that the employee’s condition and its impact is clearly set out at the start. 

• A policy or business aim to uphold high standards of behaviour, or perhaps even a zero-tolerance stance on certain types of conduct, can be legitimate and understandable. However, applying it on a blanket basis to all employees, without considering whether the behaviour is linked to a disability, puts employers in danger of breaching their legal obligations. Any case of potential misconduct should always be considered on its own merits, and employers should be wary of treating all breaches as equal without regard to the circumstances.

• Decision-makers should always be made aware (with the employee’s consent) of any relevant conditions, and actively consider any explanations provided by the employee that indicate a causal link between their conduct and their condition. Even if a breach of policy is proven, when deciding on the appropriate sanction they will need to consciously assess whether the association with the disability provides any mitigation. For example, if the employee’s explanation is that their disability impacted their ability to understand that their conduct was prohibited or inappropriate, using a warning rather than dismissal may be advisable to clearly set out expectations of behaviour and offer a chance to improve. If the conduct is repeated, an employer is then in a much safer position to dismiss. Conversely, if the decision-maker feels that the conduct is not mitigated by the condition, they should clearly explain their reasoning to the employee.

• It is always advisable to offer an appeal process, particularly as this demonstrates compliance with the ACAS Code of Practice and can permit the employer to rectify any procedural issues with the original process. However, if the appeal does not offer any actual examination of the evidence or issues, it won’t necessarily assist the employer if the substantive decision is found to be unfair. In Madden, the Tribunal felt that in order to “cure the defects, and undertake a sound balancing exercise between conduct and mitigation, the panel would have needed to reconsider the matter de novo” – as the employer had insisted the appeal was “not a rehearing” and did not do so, the flaws in the decision weren’t corrected.

• During any formal process, employers should remain open to adjustments even if they are outside of their usual policy. As noted above, the employer in Madden was criticised by the Tribunal for failing to offer virtual attendance options or companions outside of the usual categories at the disciplinary stage. This was despite other adjustments (written submissions) having been offered and accepted. If any adjustments are genuinely not reasonable, it would be wise to remain consistent in this regard; any later accommodation of such a request (as happened in Madden) could end up as evidence that it would have been reasonable for them to do all along.

• Managers and colleagues of neurodiverse staff should also bear in mind the potential impact of that condition in their dealings with them outside of any formal process. The extent to which this is possible will of course vary depending on the information shared, and it would rarely be appropriate to make assumptions about whether an employee has a condition or how it might affect them. However, where someone is on notice of a potential impact, the proactive duty to make reasonable adjustments will apply even if no request has been made by the employee. This could include, for instance, addressing conduct informally at an earlier stage to ensure the employee understands the implications of their behaviour and how it is being perceived. Such an approach will of course require a careful balancing of duties towards the employee and their colleagues, particularly if the conduct concerns sexual harassment.

• For all employees, including those with disabilities, employers should ensure that they consider any efforts made by the employee to improve or learn from their behaviour. This is particularly crucial where the sanction decision turns on whether the actions are likely to recur (which can often be the line between a warning and dismissal). If, as in Madden, the employer concludes that they can’t have confidence that the conduct wouldn’t happen again, this will be hard to justify as fair if there is demonstrable evidence of them taking accountability and/or changing their ways.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Rose Lim (RoseLim@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

The Paternity Leave (Bereavement) Act 2024 came into force on 29 December 2025, giving the Government power to make regulations about paternity leave entitlements where the primary carer of the child dies within the first 52 weeks following birth.

These regulations have now been made, meaning that these new rights will apply to such bereavements taking place after 6 April 2026.

What is the current position?

Where the primary carer (usually anticipated in law to be the mother or co-adopter) of a child dies within the first year following birth, the bereaved partner may have the right to take leave such as:

• Paternity leave and pay: 2 weeks’ statutory paternity leave, to be taken either as a single period or two separate weeks, and statutory paternity pay.

• Shared parental leave and pay: Ability for parents to share the mother (or primary adopter)’s entitlement to 50 weeks’ maternity leave, with statutory shared parental pay.

• Parental leave: 18 weeks’ unpaid leave to be taken before the child’s 18^th birthday.

• Bereavement leave: 2 weeks’ leave following the death of a child or a stillbirth with statutory parental bereavement pay.

• Dependants Leave: Right to take ‘reasonable’ unpaid time off to help a dependant (including a child or partner) with an emergency.

Each of these rights have strict eligibility criteria, and in many cases are unpaid. Crucially, unless the partner is eligible for shared parental leave, none of these options would allow for a prolonged absence from work in an equivalent sense to the primary carer’s maternity leave.

What is changing?

Under the Paternity Leave (Bereavement) Act 2024 (the Act), employed bereaved partners will now benefit from new rights allowing them to take a single period of leave lasting up to 52 weeks after the birth of the child (or adoption placement). There is no minimum service period required, making this a ‘Day One’ right.

In order to be eligible, the child’s primary carer must have died within 52 weeks of the birth or adoption placement, and the partner must have the necessary relationship to the primary carer. Broadly this means that they must be the father of the child, or the spouse, civil partner or partner of the primary carer. Equivalent provisions apply for parental order cases.

The leave can be started immediately within eight weeks of the bereavement, or with a week’s notice at a later date. The partner will also benefit for up to 10 keeping-in-touch (KIT) days, and they and their employer can make reasonable contact with each other during the leave.

There is no statutory right to be paid, but statutory paternity pay is likely to apply for up to two weeks (provided that this has not already been taken). Employees who are eligible for shared parental leave may therefore prefer to take that route, due to the statutory pay potentially on offer.

During the period of leave and on their return, the partner will benefit from protections similar to those applicable on other types of longer periods of family leave, including:

• preservation of all terms and conditions during the leave (except for pay);

• a right to return to the same job on no less favourable terms and conditions;

• a right to be offered a suitable alternative in redundancy situations for up to 18 months after the birth or adoption placement; and

• protection from detriment and automatic unfair dismissal.

What does this mean for employers?

Employers will need to update their policies to ensure that, from 6 April 2026, their managers and HR teams are prepared to deal with situations of bereaved partners in the workplace. This could either be as a standalone policy or as part of any existing family leave policies. Those dealing with relevant requests should receive training in order to communicate sensitively and with full understanding of the types of leave available.

Employers will also need to consider whether they wish to offer any enhanced packages, such as making the leave paid in a similar way to maternity leave, or otherwise extending pay beyond the other statutory entitlements that may apply.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Rose Lim (RoseLim@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your us ual BDBF contact

What is the current position?

From 1 October 2025, new provisions came into force under the Victims and Prisoners Act 2024 (VPA 2024) enabling victims of crime to speak out about their experiences and limiting the ability of non-disclosure agreements (NDAs) to restrict them from doing so.

In summary, individuals who are a “victim of crime” may make a “permitted disclosure” to certain categories of persons for the purposes of obtaining relevant support or co-operating with the relevant function. The categories include law enforcement, regulators or key family members. A person can be a “victim” if they have experienced or witnessed criminal conduct, or reasonably believes they have done so, and suffered harm as a result. A police report or conviction is not required.

A “permitted disclosure” can be made about the relevant criminal conduct regardless of any NDA signed by the individual, and any provision purported to restrict this ability will be invalid.

For full information on the changes introduced under the VPA 2024, please see our briefing here.

As highlighted in our briefing, a key feature of the current ability to make a “permitted disclosure” is that it must be to one of the specified recipients and must be for the specified purpose. Sharing information for the primary purpose of releasing information into the public domain, such as to the press, will not be a “permitted disclosure” and therefore can be validly restricted by an NDA. 

These changes sit in parallel to the planned changes under the Employment Rights Act 2025, which will prohibit NDAs that would restrict someone’s ability to discuss discrimination or harassment. You can find out more about these changes here.    

What is changing?

In October 2025, the Government published a further update indicating that the relevant section of the VPA 2024 is in fact only a temporary measure and would be amended in due course to expand the scope of “permitted disclosures” even further. This was not indicated prior to the VPA 2024 coming into effect.

This proposed change is now rapidly making its way through Parliament as part of the Victims and Courts Bill, the final reading of which took place in the House of Lords on 17 March 2026. It is now with the House of Commons for their consideration on 25 March 2026.

According to the most recently published version of the Bill, the key effects of the change will be that:

• There will no longer be a list of specified recipients to whom a “permitted disclosure” can be made.

• The requirement that the “permitted disclosure” be for the purpose of obtaining support or co-operation from the person or function will be removed. Additionally, a disclosure will still be able to be a “permitted disclosure” even if it was made for the primary purpose of releasing the information into the public domain.

• The scope of possible disclosures will be expanded to include “an allegation of” relevant criminal conduct, and allegations or information about the “response of any other party to the agreement” to the conduct or allegation. The individual must still be a victim or reasonably believe they are a victim.

If passed in its current form, the clause will effectively bring the restriction on NDAs relating to criminal conduct in line with the prohibition under the Employment Rights Act 2025 on discrimination or harassment-related NDAs (which is not yet in force).

In practice, this means that disclosures related to criminal conduct (including alleged conduct or the response of another party to that conduct) can always be made to anyone for any purpose and cannot be restricted via an NDA. Individuals will therefore be able to freely share such information with the press or otherwise in the public domain, and cannot be restricted from doing so through an NDA.

Under the new provisions, the Secretary of State will have the power to set out conditions for “excepted agreements”, i.e. situations in which NDAs can be signed validly, but even in such cases restrictions on disclosure are unlikely to be permitted to be absolute. In its original update, the Government stated that this is intended to recognise situations in which both parties wish for confidentiality, whilst protecting situations where disclosures must always be allowed.

The proposed clause also clarifies the effect of NDAs entered into by the Crown.

What does this mean for employers?

Whilst these changes still need to be passed by the Commons, and will not come into force until relevant regulations are released, this unexpected influx of further NDA regulation may be challenging news for employers who have only recently updated their approach to accommodate the VPA 2024 and the planned changes under the Employment Rights Act 2025.

Most notably, the existing protections against the use of NDAs under both whistleblowing legislation and the VPA 2024 apply only in circumstances where the individual is sharing information either in the public interest or for the purpose of obtaining justice or support. Employers will therefore have had some confidence that NDAs can validly be used to prevent employees sharing information or allegations about criminal conduct for other purposes, for instance press attention or with competitors.

Under the new proposals, there is still the requirement that the individual must be (or reasonably believe) that they have been a victim of crime, which may be a deterrent from making ‘bad faith’ allegations. However, in practice, this is unlikely to offer employers much comfort given that once a disclosure has been publicly made, the question of whether it should have been restricted by an agreed NDA (or indeed whether the belief was reasonable) is of limited value.

Employers will therefore need to be prepared for anyone who has experienced or witnessed conduct of a criminal nature, or reasonably believes they have done, to speak out about that conduct (including making allegations about that conduct or their response to it). Further updates to confidentiality clauses, in particular those in settlement agreements, are likely to be required to ensure that employers do not purport to restrict these disclosures in any way.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Rose Lim (RoseLim@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact

What is an “equality action plan”?

The Employment Rights Act 2025 provides that private sector employers with 250 or more employees must develop and publish “equality action plans” on an annual basis.  The plans must set out the steps the employer is taking to address its gender pay gap and to support employees going through the menopause.

The first action plans must be published on the Government’s gender pay gap service from Spring 2027 (and employers may wish to publish them on their own website as well).  However, the Government is encouraging employers to publish action plans on voluntary basis for the 2026-27 reporting year by 4 April 2027. Employers who are not in scope to publish a plan are also encouraged to consider producing and publishing one.

What does the guidance say?

To help employers prepare for voluntary publication of an action plan, the Government has published initial guidance for employers.  Alongside that guidance, the Government has also published a list of 18 recommended actions for employers to consider. 

The key points to note from the guidance are as follows:

• As part of developing an action plan, employers must select at least one action to address their gender pay gap and at least one action that supports employees experiencing the menopause.  However, the guidance urges organisations to be ambitious and take more steps where possible.

• As far menopause actions are concerned, the Government says it supports steps that employers may choose to take which also benefit employees experiencing other health conditions related to menstrual health (e.g. endometriosis or fibroids).

• Employers are asked to consider how employees may be disadvantaged in the workplace due to the overlapping impact of their sex with other characteristics, such as ethnicity, disability status and socioeconomic background. 

• The importance of securing senior leadership buy-in is underlined and it is recommended that training is given to all senior leaders and managers on workplace gender equality and the chosen actions.  

• Emphasis is also placed on the need to seek input from a range of employees when developing an action plan.  It is said that gathering feedback on their experiences within an organisation can help employers better understand which actions could have the greatest impact.  It is suggested that actions are discussed with unions, relevant employee networks and HR and people teams.

• Further guidance on the reporting process will follow in April 2026 which will cover the steps that employers should take when developing their action plans.  This guidance will cover: understanding the issues within the employer’s organisation, selecting actions, submitting the action plan, tracking the outcomes of the chosen actions and reviewing the plan.

Which actions are recommended?

A total of 18 actions are recommended – from which employers must choose at least two (one targeting the gender pay gap and one to support employees through the menopause).  The actions are summarised in the table below, which includes hyperlinks to further details about each action (in each case providing more information about the purpose of the action, its benefits, how to implement it and how to track its progress).

Area	Action
Recruiting staff	• Make job descriptions inclusive. • Encourage applications from a range of candidates. • Reduce unconscious bias in CV screening. • Use fair and structured interview techniques. • Advertise leave policies in job adverts. • Advertise flexible working arrangements in job adverts.
Developing and promoting staff	• Automatically consider eligible employees for promotion • Encourage employee development through actionable steps • Offer mentoring, sponsorship and other development programmes
Building diversity into your organisation	• Set targets to improve gender representation
Increasing transparency	• Increase transparency for pay, promotion and rewards • Enhance and promote flexible working and leave policies
Supporting employees experiencing the menopause	• Train managers to support employees experiencing menopause • Offer occupational health advice for employees experiencing menopause • Set up menopause support groups and networks • Offer workplace adjustments for employees experiencing menopause • Conduct a menopause risk assessment for your workplace • Review policies and procedures to meet the needs of employees experiencing menopause

What does this mean for employers?

While there is no obligation for employers to produce and publish an action plan at this point, those employers who will be in scope to do so from 2027 may wish to have a “dry run” at producing a report this year. 

When choosing which actions to pursue, employers should be aware that some of the Government’s suggested actions may amount to “positive action” measures, which are measures aimed at overcoming disadvantage, meeting needs or correcting the underrepresentation of a group with a particular protected characteristic – in this case women.  Encouraging applications from women, offering mentorship, sponsorship or other development opportunities to women and setting targets to improve gender representation would all likely be considered positive action measures. 

Positive action is only lawful where an employer “reasonably thinks” that such action is needed.  In other words, evidence showing the disadvantage, different need or underrepresentation will be needed – a poor gender pay gap figure may be sufficient evidence but, in some cases, more may be needed.  Further, an employer must show that the proposed action is a “proportionate means of achieving a legitimate aim.” This involves balancing competing relevant factors, including how serious the disadvantage, aim or underrepresentation is, whether the action is appropriate to achieve the stated aim and whether it would be possible to achieve the aim by other means less likely to adversely affect others (in this case, men). If an employer fails to have the required evidence, or to act proportionately in pursuit of a legitimate aim, then there is a risk that the measure will stray into unlawful positive discrimination.  This could give rise to sex discrimination claims from men.

Therefore, it is important that employers do not assume that just because an action is listed in the Government’s guidance, it could not be challenged in any such claim (although the fact that it is listed in the guidance could be cited in aid of any subsequent challenge).  In some cases, additional groundwork must be undertaken before implementing the action.  Employers would be wise to seek legal advice before implementing an equality action plan.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk), Rose Lim (RoseLim@bdbf.co.uk) or your usual BDBF contact.