I Don’t Know What You Did This Summer….

As the confused summer weather looks decidedly more autumnal and the Back to School mantra dominates the billboards and airwaves, summer looks soon to be over. Whilst I don’t know what you did this summer, I thought I would share with you a few tit bits on what we in the employment law world have been reading up on this summer….

1. ACAS:

  • New Guidance: This month Acas published three new guides designed to help employers understand equality and discrimination law, how to prevent discrimination and how to address it where it occurs. This new guidance is designed to supplement existing Acas guidance on individual protected characteristics. For further details click here. Of particular interest is the third guide on ‘What to do if it happens…’  It recognises the importance of using informal methods of resolution to discrimination complaints, rather than the usual process-driven guidance from Acas. However, informal resolutions in this area can be tricky as the employer could be accused of not taking the matter seriously or of trying to lean on the employee to leave quietly if the correct balance is not struck. So whilst Acas has recognised that an informal approach could be a legitimate way forward, you would be advised to proceed with caution if you find yourself on the receiving end of any discrimination complaints.
  • Acas Early Conciliation: Acas has just published its first year statistics since it became mandatory for most prospective claimants to go through the Early Conciliation process prior to issuing a claim. It appears to be a success so far as the statistics show that in the first year of the regime:
    It dealt with over 83,000 notifications; Overall, around 90% of employees and employers agreed to participate in early conciliation;
    Nearly half of all claimants who used early conciliation either settled via Acas or decided against submitting a tribunal claim due to Acas’ involvement.

2. A recent EAT case confirmed that annual leave which is untaken due to sickness absence cannot be carried forward indefinitely…

In Plumb v Duncan Print Group Limited, the EAT confirmed that workers on sick leave cannot carry untaken holiday forward indefinitely. The EAT held that under European law carry-over is limited to a period of 18 months following the end of the relevant leave year. The case also confirmed that untaken leave can be carried forward regardless of whether the reason for the carry-over was because the employee was unable or unwilling to take it. Do note however, whilst the ruling provides welcome clarity to employers, it only relates to the four weeks’ leave required by the Working Time Directive, not the additional 8 days’ statutory leave under the UK Working Time Regulations.

3. Recent confirmation that procedural flaws in disciplinary proceedings can be corrected on appeal…

In the recent case of Adeshina v. St Georges University Hospitals NHS Foundation Trust there were a number of procedural failings in the disciplinary process, including that the decision to dismiss the claimant was based partially on matters which had not been put to her. The claimant’s appeal was then heard by a panel which included an individual who had previously been involved in issues that were subject of the proceedings. The EAT recognised that small employers may struggle to identify sufficient senior managers with no previous involvement in the case to sit on a disciplinary panel. Rejecting the claimant’s appeal, the EAT held that the tribunal was entitled to consider the flaws in the context of the appeal process and to conclude that those flaws, although serious, had been remedied.

Insights.

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