A BRIEF REVIEW…
2025 has been a busy year for employment lawyers and HR professionals alike. In this article, we highlight some significant developments which emerged during the last 12 months.
1. ACAS EARLY CONCILIATION WINDOW EXTENDED FROM 6 TO 12 WEEKS
This year we saw ACAS struggling to get through their backlog of early conciliation requests, meaning that the early conciliation window was often over (and the Claimant was left having to issue their claim) before the parties had even had chance to negotiate.
The longer conciliation window means that employers are more likely to hear from ACAS before receiving a claim.
This is not necessarily a bad thing, because early conciliation can be used to:
Get to grips with what the potential claims are. Good conciliators should empathise with the Claimant whilst getting them to explain their case fully (and challenging the Claimant if the claim appears weak.)
Make a commercial offer early if the risks of the case clearly outweigh defending the claim.
We can of course assist you with assessing claims at an early stage and if necessary negotiate on the company’s behalf.
2. FOCUS ON THE DUTY TO PREVENT SEXUAL HARASSMENT
The duty came into force at the tail end of 2024, and means that employers who fail to take reasonable steps to prevent harassment not only risk losing Tribunal cases, but also risk paying enhanced compensation awards (with Tribunals having the power to uplift awards by up to 25%).
To combat this risk, in addition to having up to date policies and procedures, training on harassment is vital. In addition, we recommend that clients look at monitoring reports of harassment, risk assessing scenarios where harassment may be more likely, and from there identify what can be done to help reduce that risk profile.
We can support by training on harassment and provide example harassment risk assessments which can be tailored to different areas of your business.
3. NEW RIGHTS – STATUTORY NEONATAL LEAVE & PAY
This came in as a day 1 right for employees, with an entitlement for up to 12 weeks of neonatal care leave paid at £187.18 per week or 90% of average weekly earnings, whichever is lower.
If you’ve not done so already, we recommend that you ensure your managers and HR teams know about this right and that appropriate policies are in place to support access to the leave where needed.
4. NEW GUIDANCE - DISABILITY DISCRIMINATION & NEURODIVERSITY
ACAS released new guidance on adjustments for neurodiversity: https://www.acas.org.uk/reasonable-adjustments/adjustments-for-neurodiversity.
Alongside this, recent Tribunal decisions suggest the bar is low for judges to find a neurodiverse person is a disabled person. In particular,Stedman v Haven Leisure found that an officially diagnosed condition means someone will almost certainly meet that threshold for impact on day-to-day activities element of the test.
We encourage you to ensure that your managers know how to spot when a member of their team may be struggling and / or in need of further support. Where in doubt, they should be seeking input from HR and in turn, occupational heath and / or the relevant workplace charities (e.g. ADHD UK https://adhduk.co.uk/about-us/).
When speaking to employees about neurodiversity, finding out how it impacts them individually and whether they have any formal diagnosis will be helpful starting points to tailor any potential adjustments accordingly.
5. THE TRIBUNALS ARE STRUGGLING!
On top of significantly more case volumes year on year, we have seen:
(a) More hearings than ever before cancelled 24hrs before due to no available judges;
(b) Claims not being sent to Respondents in time, meaning emergency applications for extensions of time to respond;
(c) More judges in the system without an employment background, which can give rise to rogue decisions;
(d) A real reluctance for judges to make early determinations on cases, allowing Claimants to run to final hearing with claims that should have been dismissed much earlier.
(e) Final hearings listed more than 2 years away.
Whilst the delays can be used in an attritional way as a tactic to grind down a claimant, one practical consideration is the need to lock down witness evidence early on before memories fade. Also, it is becoming increasingly important to introduce a contractual obligation on employees to provide post-termination assistance (by adding a clause to their contract of employment, or by including it in a settlement agreement).
