With a busy employment law landscape ahead of us, Clyde & Co Partners, Stephen Miller, Frances Ross and Graham Mitchell, were on hand at the SPDS Annual Conference to provide a helpful primer around the areas of legislative change HR leaders need to have on their radar for the year ahead.

SPDS Vice President, Claire Wallace, facilitated a lively ‘Question Time’ session, posing questions from members of the SPDS Employment Law portfolio group.

Stephen Miller, Frances Ross, Claire Wallace and Graham Mitchell

What steps should employers be taking following the Supreme Court ruling on sex?

With the Supreme Court ruling that the definitions of man, woman and sex under the Equality Act are based on biological rather than certificated sex, Frances Ross offered the following practical tips for employers in addressing this emotive issue:

● The EHRC has withdrawn its interim guidance, so until an updated code of practice is published, some things remain “up in the air” from a legal perspective. The safest approach right now is to ensure to follow the requirements for workplaces originally set out in the 1992 health and safety regulations: suitable and sufficient facilities must be provided, which may be mixed sex if there are separate lockable rooms; where necessary, for reasons of propriety, there must be separate facilities for men and women. Trans women should not be permitted to use single women’s facilities and trans men men’s facilities.

● However, trans people must not be put in a position where there are no facilities for them to use. Where possible, Ross advised, there should be mixed sex facilities. There is a risk of trans employees arguing that their exclusion from facilities is violating their dignity or creating a hostile environment. “That puts employers in a difficult position,” Ross said. “The only way to deal with that is to try and handle it as sensitively as possible and find the best possible alternative arrangements.”

● Employers should review and audit the facilities they already have and how they are currently being used. If there is no scope for gender neutral facilities, trans people using the disabled facilities is probably the only workable option (although may bring its own risks).

● Employers are advised to consult with affected employees to minimise the risk of claims, explaining the reasons for any changes and inviting views, and making sure all staff are aware of the consequences of showing intolerance for others.

● Employers should play close attention to when the updated EHRC guidance is released as well as the outcome of the Sandie Peggie and NHS Fife case.

● Ensure HR teams and line managers are trained and equipped to manage sensitive conversations about these issues, while reinforcing that the organisation has a zero tolerance approach to discrimination and harassment.

What are the emerging legal considerations around neurodiversity in the workplace?

When it comes to reasonable adjustments and performance management for neurodiverse employees, Graham Mitchell offered employers the following tips:

● Tackle the issue of the “well meaning” manager. HR should ensure managers understand this is really tricky area, both in terms of fact and how organisations apply the law. Smith advised HR teams to train managers to “to slow down and get the facts right” before jumping to make any adjustments.

● Establish the facts: neurodiversity presents differently in different individuals, so employers should look carefully into each case.

● Involve Occupational Health as soon as possible, creating a clear picture of how each individuals’ symptoms affect their ability to work.

● Remember any adjustment has to make a difference to someone’s ability to work, rather than just being a preference.

How can employers address union resistance to drug and alcohol testing in the workplace?
 
● Unions often object to random testing as they see it as intrusive and disproportionate, said Ross. To over come this, employers should frame testing as a safety issue. “Under the Health and Safety at Work Act, employers must ensure that employees are fit for work, [so] not impaired by drugs or alcohol,” she added.

● Employers could also highlight the reputational issues attached for unions too, she suggested. “What would the public perception be if there was a serious accident involving an individual who it later transpired was under the influence, and it became known unions had obstructed testing?”

● Carry out risk assessments to demonstrate why random testing is deemed necessary for certain roles, emphasising that testing is a health and safety issue rather than a disciplinary trap and positioning it as part of a wider wellbeing strategy.

● Consider proportionality: limiting testing to roles where impairment could cause serious harm makes it easier to justify.

● Reassure unions about safeguards in place, including around data protection and privacy.

● Offering employees access to a duplicate sample that they could have checked independently could help provide reassurance.

● Some organisations are moving towards less invasive testing methods, like fingerprint testing rather than urine or blood samples.

● In the case of employees taking medically prescribed cannabis, carry out risk assessments to ensure it’s safe for them to continue in their role. Make clear in your policies that anyone taking medication that could affect their performance or safety is obliged to disclose it. Another consideration is whether they might be taking the medication for a condition that meets the threshold for disability – get OH advice on this.

What should employers do to prepare for the Employment Rights Bill?

Graham Mitchell covered four key elements of the Bill, which is currently continuing to ping-pong between the House of Lords and House of Commons, that employers should be particularly alert to:

● The time limit to lodge a Tribunal claim is increasing from three months to six. With the Acas period also doubling from six to 12 weeks, employers could find themselves facing older claims. This brings a risk of key witnesses having left the organisation and notes and documentation being lost. “Watch out for keeping really good notes and selecting the right people [as witnesses],” Smith advised.

● Changes to trade union legislation, including notice of the right to join a union, could be significant for employers. “If there’s an area that does not have a recognised union, the bar [for getting recognised] is going to be lowered quite significantly,” he said. “Trade union strength is going to be increasing.”

● Proposals around ‘Fire and rehire’, or changing contractual terms via termination and re-engagement, are likely to be more wide ranging than previously thought. Employers must pay close attention to how this progresses.

● Day one unfair dismissal rights are the biggest sticking point in the ERB gaining Royal Assent. While there is likely to be an initial nine month “period of employment”, akin to a probation, employers should still prepare themselves for an increase in vexatious unfair dismissals claims.

● Stephen Miller added that day one employment rights could make it more incumbent on employers to provide honest references, rather than sticking to job title and length of service.

What should employers be focused on in terms of the use of AI tools in the workplace?

● AI can amplify biases present in historic data, so be aware of the potential discrimination risk.

● Be transparent and ensure employees are aware of when AI is being used in decision-making processes.

● Strengthened governance around data privacy and security, such as dealing with people putting personal data into AI tools.

● If routine tasks are being automated, think about how junior staff will learn and how you will fill those gaps.

● Develop an AI use policy that makes clear what’s acceptable use and what is not, how personal data can be used and requiring employees to disclose where their work has been AI-assisted, to ensure it gets properly checked.

● In automated decision-making, ensure there’s human oversight and employees have the opportunity to challenge any decisions.

● Train managers and HR teams to make sure they understand the limits of what AI can be used for and what they need to be careful of.

● Be aware that employees are already using AI to generate grievances and Tribunal claims.

What steps should employers be taking to comply with enhanced legal duty around the prevention of sexual harassment?
 
● A proposed change that employers take all reasonable steps to prevent sexual and third party harassment increases the onus on employers, and could make successful claims more expensive to deal with.

● Acas reported a 39% increase in the number of calls relating to sexual harassment in the first half of 2025, signalling an increased awareness.

● Understand exactly what you are currently doing to protect against sexual harassment, and carry out a risk assessment to identify any hot spots within your organisation where there may be high risk of sexual harassment (for example areas with out-of-hours working and social events with alcohol). Without a risk assessment, you are unlikely to be able to establish you are compliant.

● Put steps and measures in place to mitigate risks, implementing that as an action plan.

● Ensure you have a robust anti-harassment policy in place, making it clear what conduct is not acceptable, how employees raise concerns and reiterating your zero-tolerance stance.

● Ensure you have regular training in place. Without training, it will be hard to show you’ve taken all reasonable steps.

● Ensure you have clear, confidential channels in place for people to report sexual harassment, and that you respond to.

● Consider having a designated lead for sexual harassment prevention, ensuring the topic is always on someone’s to-do list and that risk assessments and action plans are reviewed and updated on a regular basis.

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Blog by Katie Jacobs, an award-winning freelance journalist, writer and editor, who specialises in writing about the world of work. She was previously Editor of HR Magazine and Senior Stakeholder Lead at the CIPD.