According to research carried out by leading law firm GQ Littler, the number of claims received by employment tribunals increased by 27 per cent over the last year – more than 6,000 greater than in the previous 12 months. This indicates a considerably faster increase than that which occurred during 2017-18 and 2018-19.
This spike in claims has been put down to the broad range of employment law risks caused by the pandemic – and the bad effect that has had on the economy.
Philip Cameron - a Partner at GQ Littler - said:
“It is unrealistic to expect that you can go through such a huge change in working practices and a severe economic downturn without creating a sharp rise in disputes between employees and employers. The pandemic has created HR challenges for employers that they have never faced before. While employers have often met this huge logistical challenge well, it is not without a cost.”
Jonna Mundy - CEO of You HR - agrees. She states that the amount of tribunal claims was ‘an inevitable aftermath from the first catastrophic Covid hit last year’, with the full impact yet to be felt.
She commented, “We are yet to see the fallout of further redundancies likely to come from spring onwards of this year.” She added that “poor practice in not managing health, wellbeing and other employee concerns would likely amount to further claims”.
When employment law experts were asked for advice on how firms can keep themselves out of the virtual courtroom, Jo Caine - Managing Director of Cathedral Appointments - suggested that employers should engage with HR and legal specialists.
She said:
“In this day and age, word spreads fast. If your company treats employees unfairly or in an inappropriate manner, especially during a time of crisis such as this, there will be consequences. Employees will talk, bad reviews will be made on platforms such as Glassdoor, and your business will suffer in the long term.”
In addition to the pressure felt by employers, the courts are suffering from a growing backlog of cases. Waiting time for single claims of unfair dismissal and discrimination is averaging out at 38 weeks. GQ Littler states that this is something that is exacerbating problems for employers and employees who then face periods of uncertainty.
Philip Cameron stated:
“For both employers and employees these long waits before tribunals can be demoralising. For management they are a huge distraction and for employees the lengthy wait period can be very stressful and they will have no source of income.”
Issues about the Government’s furlough scheme; the handling of the redundancy process; health and safety concerns and the increase in flexible working are all common traps that employers fall into which could lead to employment tribunals.
The selection of employees to be furloughed may come under scrutiny in 2021 and choosing which employees to furlough should be as fair and objective as possible.
With quick and large-scale redundancies having to be made, employers need to follow a fair selection process – a collective consultation process for 20 or more employees from a single location over a period of 90 days or less. Failure to do this can result in an award of up to 90 days’ pay for each affected employee.
In addition to ensuring that the workplace is safe to work in - to reduce the spread of infection, employers also need to ensure that risks to pregnant employees are assessed regularly. Reasonable adjustments should also be made for disabled workers and employees should be protected against detriment or dismissal where they reasonably believe themselves to be in serious and imminent danger such as - during the COVID-19 pandemic - contracting the potentially deadly virus.
In 2021, employment tribunals could face difficult questions regarding whether an employee’s long COVID symptoms meet the definition of a disability under the Equality Act.
Meetings should continue online as employment tribunals are still functioning throughout the latest restrictions and Kathleen Heycock - Partner at Farrer & Co – says:
“In our experience, even difficult and complex investigations can take place remotely………there is unlikely to be much sympathy for employers – or employees – who now try to use this third lockdown as a reason to delay or frustrate HR processes.”
She added:
“Perfection is a tough goal, even in normal circumstances. No matter how well any process is run, it is not possible to eliminate all claims for disgruntled or distressed employees. And there are far more of those during these difficult times. It is inevitable that claims increase when employees can’t simply move on to a new job and a decent salary. Sadly, there are just more people who feel litigation is worth it, because they don’t have another option.”
