Monthly Highlights – UK Employment Law – September 2026

In this month’s highlights, our team summarises the latest developments in UK employment law and their implications for employers. Catch up on August’s highlights here. All future implementation dates remain subject to parliamentary processes and may change.

Employer’s Vicarious Liability to a Third Party Does Not Transfer Under TUPE

In ABC v Huntercombe (No.12) Ltd and others, the Court of Appeal unanimously held that a transferor’s vicarious liability to a third-party claimant for the torts of its employees does not pass to the transferee on a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Background

A patient at Huntercombe Hospital, a privately-run psychiatric facility, alleged that she was mentally and verbally abused by staff and restrained on over 200 occasions.

All events pre-dated a TUPE transfer in around March 2021 from Huntercombe to Active Young People Limited (AYPL). Huntercombe subsequently entered liquidation. The patient therefore argued that Huntercombe’s vicarious liability for the acts of the relevant employees had transferred to AYPL under TUPE. The High Court rejected that argument. The patient appealed this decision.

The Court of Appeal’s Decision

In dismissing the appeal, the Court of Appeal held that TUPE should be construed by reference to the purpose of the EU Acquired Rights Directive (2001/23/EC), from which TUPE derives, rather than by focusing solely on the natural and ordinary meaning of TUPE. The Directive’s primary purpose is to safeguard the existing rights of employees on a change of employer.

The Court of Appeal identified five reasons supporting the conclusion that vicarious liability does not transfer:

1. Regulation 4(2)(a) does not extend to liabilities owed by the transferor to third parties – an employee has no enforceable right requiring their employer to be vicariously liable for their wrongdoing;
2. Vicarious liability gives employees no legal protection, as the employer may recover a full indemnity from the employee;
3. The phrase “in connection with” in Regulation 4(2)(a) must be read in light of the directive’s purpose – vicarious liability to a third party does not form part of the employer’s obligations to the employee under the contract;
4. Regulation 11 of TUPE imposes obligations on the transferor to notify the transferee of “employee liability information” but has no equivalent provision for third-party claims, while Regulation 12 provides sanctions for non-compliance, reinforcing the Court’s reasoning; and
5. It would be counterintuitive and contrary to ordinary legal principle to make a transferee liable for pre-transfer events it had no connection with and no entitlement to know about.

Rejecting the High Court’s requirement for a “direct” connection as imprecise, the Court of Appeal preferred to hold simply that the liabilities referred to in Regulation 4(2)(a) do not extend to the transferor’s vicarious liability to third parties for the acts and omissions of employees prior to transfer.

Key Takeaways for Employers

This decision provides important clarity for employers involved in TUPE transfers. The judgment was produced with a case management conference in mind for more than 50 similar claims brought by other claimants against the same parties, underlining its practical significance for the healthcare and social care sectors. 

Transferees can take comfort that they will not inherit the transferor’s vicarious liability to third parties for the pre-transfer conduct of transferring employees. This is particularly significant in sectors such as healthcare, social care and outsourcing, where historic negligence or abuse claims may arise. Due diligence exercises can accordingly focus on employment-related liabilities that do transfer, rather than needing to investigate potential third-party claims.

Individual Employees Can be Personally Liable for Failing to Make Reasonable Adjustments

In Merriman v 1st Staff Ltd and others, the Employment Appeal Tribunal (EAT) held that claims for a failure to make reasonable adjustments can be brought against individual employees and agents under the Equality Act 2010, not solely against employers.

Background

The claimant was engaged to tutor a person with special needs via a staffing agency arrangement involving 1st Staff Ltd. The claimant developed a disability that made it difficult to attend tutoring in-person and sought adjustments, including a move to online tutoring.

The Employment Tribunal (ET) allowed the claimant’s reasonable adjustments claim against 1st Staff Ltd to proceed but struck out identical claims against several 1 Staff Ltd employee respondents, holding that a reasonable adjustments claim can only be brought against an employer, not against individual staff.

The EAT’s Decision

The EAT allowed the appeal, overturning the ET’s decision to strike out the claims against the individual employee respondents. Its reasoning applied Baldwin v Cleves School & Ors and drew support from paragraph 10.55 of the EHRC Employment Code, confirming and applying existing authority rather than breaking new ground. 

Although the statutory duty to make reasonable adjustments is imposed on an employer or principal, a company can only act through its employees and agents. The EAT held that where an employee’s conduct in the course of employment amounts to a breach of the employer’s duty, sections 109 and 110 of the Equality Act 2010 (“the Act”) are engaged.

Section 109 provides that anything done by an employee in the course of their employment must be treated as also done by the employer. Section 110 imposes personal liability on an employee where their conduct is treated as an act of the employer and amounts to a contravention of the Act.     

The EAT held that where an employee is found to have committed an act of discrimination for which the employer is vicariously liable, the employee can be equally liable. Critically, this personal liability can arise even if the employer successfully relies on the statutory defence that it took all reasonable steps to prevent the conduct.

The case was remitted to the ET with the claims against the four individual respondents reinstated.

Key Takeaways for Employers

This was a strike-out appeal. The EAT decided only that such claims are legally capable of proceeding against individuals and remitted them to the ET. It made no finding of liability.

Employers should ensure that managers and decision-makers are aware that they may face personal exposure where their conduct is said to have caused or constituted a failure to make reasonable adjustments. Employers should reinforce training on disability discrimination obligations and the duty to make reasonable adjustments, particularly for employees with responsibility for responding to adjustment requests, as a means of both protecting the organisation and its individual employees.

New Statutory Bereavement Leave Entitlement Confirmed

The government published its response to the consultation on a new “day one” right to bereavement leave, to be introduced by secondary legislation under the Employment Rights Act 2025. The consultation received 1,924 individual responses.

Background

There is an existing statutory entitlement to Parental Bereavement Leave, but this is limited to parents whose child under 18 has died or who experience a stillbirth after 24 weeks of pregnancy, providing up to two weeks of paid leave.

Outside of this, employees who experience bereavement have no statutory right to take time away from work. The new entitlement is broader in scope, covering a far wider range of relationships and pregnancy loss before 24 weeks, but it will be unpaid.

Key Details of the Entitlement

The government confirmed the following key elements: 

• Leave will cover the loss of immediate family members – spouses, civil partners, partners in a committed long-term relationship (cohabiting or non-cohabiting), parents, adult children and siblings (biological, adopted, step- and half-).
• It will also cover equivalent parental relationships for those raised in kinship or foster care arrangements.
• For pregnancy loss, it will be available to the person who was pregnant, the spouse, the civil partner, the other parent or a partner who is in a committed long-term relationship with the person who physically experienced the pregnancy loss, including an intended co-parent and intended parents in a surrogacy arrangement.
• All types of pregnancy loss before 24 weeks will be covered, including miscarriage, ectopic, molar and chemical pregnancies, all terminations and IVF embryo transfer loss.
• Up to two weeks’ leave will be available, based on the employee’s working pattern, which can be taken in discontinuous single days within 56 weeks from the date of death or pregnancy loss, or from the date of knowledge, as applicable.
• Notice can be given as soon as reasonably practicable – the same day within the first eight weeks and one week’s notice thereafter. There will be no evidence requirements for this entitlement.

The new right will be implemented through secondary legislation with measures expected to come into force in 2027. The government will also publish guidance for employers and employees.

Key Takeaways for Employers

Employers should begin to review and, where necessary, update their bereavement leave policies in preparation for the new entitlement.

Although the leave will be unpaid, the scope of eligible relationships is significantly broader than the current parental bereavement leave framework. Employers should be mindful that the new right includes pregnancy loss before 24 weeks, which will require sensitive handling. The absence of any evidence requirement means employers cannot request proof of the bereavement.

Duty to Inform Workers of Right to Join a Trade Union Intended to Come Into Force in January 2027

The new duty on employers to inform workers of their right to join a trade union is intended to come into force in January 2027. The government’s consultation on implementation had contemplated 30 October 2026, and the government published its response to the public consultation on the implementation of this duty.

Background

The Employment Rights Act 2025 introduces a duty on employers to provide workers with a written statement informing them of their right to join a trade union. The government ran a consultation on the practical details of implementing this duty.

Key Details of the Consultation Response

The government confirmed the following: 

• There will be a standardised statement for employers to issue, set out in regulations.
• No amendments will be allowed except where specific workplace information is added.
• The written statement must include a brief explanation of union functions, a list with information on recognised trade unions and/or statutory access agreements (where applicable), and a summary of statutory rights. Employers must either include a link to the Certification Officer’s list of trade unions within the statement or provide a copy of the list alongside the statement.
• For new workers, the statement must be provided directly at the same time as the written statement of employment particulars.
• For existing workers, the statement can be delivered directly or indirectly and must be reasonably accessible. Existing workers who are employed when the duty commences and remain employed on 5 April 2027 must first receive the statement by 5 April 2027, with annual provision or reminders by 5 April in each following year.
  • Where existing workers are informed directly, this must be repeated annually by 5 April.
  • Where indirect methods are used, the employer must ensure the statement remains continuously available and issue an annual reminder of where to find it.

Key Takeaways for Employers

Although the duty is intended to come into force in January 2027, employers should use this additional time to prepare for compliance.

The government has yet to publish the prescribed wording of the standardised statement.  Secondary legislation is expected to be laid before Parliament in November 2026, with guidance detailing the confirmed requirements expected to be published shortly afterwards.

Employers should monitor for the publication of the final regulations and consider how they will deliver the statement to both new and existing workers, particularly for indirect delivery methods (such as intranets).