Employment Law Update – October 2022
Welcome to the second LinkedIn newsletter edition of our Employment Law Update, our monthly round-up of employment law news brought to you by our employment experts.
This month’s bulletin looks at some recent case law updates, the government’s plans which are relevant to this area, and an update from ACAS regarding suspensions.?
Case Law Update ??
University of Dundee v Chakraborty [2022] EAT 150
The Claimant raised a grievance with his employer under their Dignity at Work and Study Policy. The grievance was investigated by an independent member of staff employed by the Appellant. They produced a report on the findings of their investigation. However, the final report lodged with the Tribunal was amended due to subsequent advice that the Appellant received from their legal advisers. It was also amended by the member of staff conducting the investigation. This was obvious to the Claimant, who then requested disclosure of the initial unamended report.
The Appellant argued that the unamended report was privileged because the comparisons that could be drawn between the two versions would reveal the legal advice they had received from their advisers. The Tribunal rejected this argument and the Appellant appealed.
On appeal, the Appellant argued that the original version had retrospectively acquired legal advice and litigation privilege for the above-mentioned reasons. The EAT rejected this argument and held that the original report, by the Appellants’ own concession, was not privileged at the time of its creation. Secondly, the unamended report had not acquired retrospective privilege.?The original report had to be disclosed.
Clark & Ors v Sainsburys Supermarkets Ltd & Anor [2022] EAT 143
In this case, there were multiple parties making a joint claim that shared the same ACAS Early Conciliation number. Not all the parties making the claim were named on the Early Conciliation certificate. The Employment Tribunal in the first instance rejected those parties that did not appear on the certificate. The Claimant appealed to the EAT and the appeal was allowed.
The EAT held that it was sufficient for one Early Conciliation number to be produced on a claim form for multiple claimants, so long as one of the claimants was named on the respective Early Conciliation certificate.
HHJ James Tayler also gave a stark reminder that litigation should be avoided wherever possible, and settlement of the claim(s) between the parties should be encouraged.?
News ??
ACAS updates their advice on Suspensions
ACAS have recently updated their advice on staff suspensions. There are a number of reasons why an employer may consider suspending an employee, but ACAS remind employers that they should only suspend someone if it is appropriate, usually in serious circumstances. Some of the takeaway points from ACAS’s advice are:
More detailed advice from ACAS regarding suspensions can be found here.
Cost of Living Crisis
As the cost-of-living crisis continues to make the headlines, the Living Wage has increased to ￡10.90 an hour across the UK, and ￡11.95 an hour in London. The Living Wage is a minimum rate which is voluntarily paid by employers that opt into the scheme. There are currently 11,465 Living Wage employers in the UK accredited by the Living Wage Foundation.
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Employers who pay the Living Wage have been encouraged to implement the new rates as soon as possible, and certainly by no later than 14 May 2023.
The National Minimum Wage is the minimum hourly rate set by the government, which employers have a legal obligation to pay. The new NMW rates usually come into force on 1 April each year. However, the government is under pressure to increase the National Minimum Wage to reflect the soaring rise in inflation. The Trades Union Congress have stated it needs to be raised as soon as possible.
Rework of Regulations
On 2 October 2022, Liz Truss announced the government’s plans to ease certain regulations for thousands of businesses, such as reporting requirements. When developing policy, the current assumption is that businesses with fewer than 50 employees are exempt from certain regulations. From 3 October 2022, this threshold was changed to businesses with fewer than 500 employees, with plans to consult to extend the threshold to fewer than 1000 employees in the future. This is a significant change that is likely to impact around 40,000 businesses. The threshold will apply to all new regulations under development and all those under review, including retained EU Law. These changes are part of the government’s continued agenda to boost the economy.
Last month’s bulletin also highlighted the government’s intentions to shake up workers’ rights but the plans remain speculative.
BREAKING NEWS: As of 10 October 2022, criminal barristers have voted to end their 5-month strike over pay. Hundreds of trials have been delayed, causing yet further backlog in an already overcrowded court system. Although this does not impact Employment Tribunal cases, it reminds us that the courts and tribunals generally are fighting to clear unprecedented backlogs. In cases that have been issued recently, we are seeing final hearings being listed in some Employment Tribunals in 2024!
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