The Government’s furlough scheme, large-scale redundancies, safe working concerns and the rise of flexible working will have a big impact on employment tribunals for years to come.
We highlight 10 employment tribunal claims related to the coronavirus pandemic that employers could face in 2021 and beyond.
1. Breach of contract when cutting furloughed employees’ pay
The Coronavirus Job Retention Scheme has allowed employers to claim for a percentage of furloughed employees’ wages (although employers can choose to top this up so they continue to get their normal wages).
Remote employment tribunal hearings
While a move towards online tribunal hearings was on the cards already, the pandemic has forced the pace of change and they will continue to be commonplace in 2021. The employment tribunal presidents for England, Wales and Scotland have produced FAQs on proceedings (including remote hearings) during the pandemic.
However, the lack of clarity within the government’s guidance on agreement to furlough means that there is trouble on the horizon for employers that have unilaterally imposed a pay cut on furloughed employees.
For example, the guidance on the extended Coronavirus Job Retention Scheme states that employers must “have confirmed to their employee (or reached collective agreement with a trade union) in writing” that they have been furloughed, but “the employee does not have to provide a written response”.
However, the guidance also states that employers must “make sure that the agreement is consistent with employment, equality and discrimination laws”. Strictly speaking, employers that are reducing an employee’s pay to furlough them should have obtained the employee’s explicit written agreement, as this constitutes a variation to their terms and conditions of employment.
A similar issue could arise with employees who were not placed on full or flexible furlough, but their employer simply told them that they were being laid off or placed on short-time working. Some contracts of employment will give the employer an express right to do this, otherwise the employee’s express consent is needed to implement lay-offs or short-time working.
2. Selection for furlough: decision-making to be scrutinised?
The Coronavirus Job Retention Scheme guidance has been light on detail about how employers should go about choosing who to furlough.
There will be employees who are aggrieved at being placed on furlough, particularly where this is accompanied by a pay cut. Equally, there will be a significant group of employees who would actually prefer to have been furloughed, but their employer has turned down their request. This latter group could include:
- parents or carers who are struggling to balance working from home and caring responsibilities;
- employees on sick leave, particularly if they could receive more pay by being placed on furlough; and
- employees at higher risk should they catch coronavirus, including “clinically extremely vulnerable” employees and pregnant employees.
Normal employment law principles should have been applied to any furlough selection process, so employers may face discrimination claims and arguments that their furlough decision-making has breached the implied term of mutual trust and confidence.
While employment tribunals are likely to be sympathetic to employers that have had to make quick decisions, furloughing decisions still need to be as fair and objective as possible.
3. Redundancy: selection process and informing and consulting
Unfair dismissal and discrimination claims in relation to redundancy are already common in employment tribunals. With many employers having to make large-scale redundancies often with little warning as a result of coronavirus, will tribunals be inundated with these claims in the next few years?
Acas early conciliation period extended
Before submitting a claim, a prospective claimant must contact Acas, which will attempt to resolve the dispute. The claimant requires an early conciliation certificate to submit a claim. From 1 December 2020, the time period for early conciliation of one month is increased to six weeks, while the option for Acas to extend the early conciliation period by up to 14 days is removed.
Both individual and collective redundancy issues should feature. Employers need to bear in mind that:
- a failure to warn and consult individually with an employee about their proposed redundancy could result in an unfair dismissal claim; and
- collective consultation obligations are triggered when they are proposing to make redundant 20 or more employees at a single establishment over a period of 90 days or less, and that failure to comply can result in a protective award of up to 90 days’ pay for each affected employee.
Collective consultation must begin “in good time” and in any event at least 30 days before the first dismissal takes effect (a period that is increased to 45 days where the employer is proposing 100 or more dismissals).
An area of uncertainty ripe for testing is the likelihood of the “special circumstances” defence applying if an employer fails to comply fully with their collective consultation obligations. In other words, do the unique circumstances of 2020, which have resulted in a sudden and drastic drop off in demand or legal requirement to close premises for many employers, excuse employers that have rushed their redundancy consultations?
4. Health and safety duties towards pregnant workers
While employers have a duty to look after the health and safety of every worker, they have additional obligations in relation to pregnant workers. Employers that fail to fulfil these obligations could face pregnancy and maternity discrimination claims.
When maintaining safe working practices during the coronavirus pandemic, employers should ensure that:
- the risks to pregnant workers are assessed individually; and
- pregnant workers are consulted about potential adaptations to their role.
Outcomes of the risk assessment and discussions with a pregnant worker could include:
- additional safe working adaptations that would allow the employee to work safely while pregnant;
- the transfer of the employee to an alternative role during their pregnancy, if such a role is available (which might include a role that allows the employee to work from home rather than attend the workplace); and
- as a last resort, the employee’s suspension from work on full pay on health and safety grounds.
For employers making use of the Coronavirus Job Retention Scheme, furloughing the employee on full pay may also be a viable option.
5. Health and safety: refusal to attend dangerous workplace
During the coronavirus pandemic, a common scenario has been employers asking an employee to attend work, but the employee believing that it is not safe for them to do so. This could be because the employee does not believe the employer has put in place safe working practices (for example social distancing and enhanced cleaning).
Health and safety and whistleblowing cases
In their FAQs on proceedings during the pandemic, the employment tribunal presidents for England, Wales and Scotland state that Covid 19-related claims alleging detriment or dismissal on health and safety or whistleblowing grounds are being prioritised.
Employees are required to obey their employer’s reasonable instructions. However, employees are protected against detriment or dismissal where, in “circumstances of danger” that they reasonably believe to be “serious and imminent”, they:
- leave their workplace (or any part of it);
- refuse to return to their workplace (or any part of it); and
- take appropriate steps to protect themselves or others from the danger.
However, there must be actual “circumstances of danger” – there is undoubtedly a danger during the Covid-19 pandemic of contracting the potentially deadly virus. The employee must also “reasonably believe” that the danger is “serious and imminent”.
Coronavirus-related employment tribunal claims for detriment or dismissal following a refusal to attend work are likely to revolve around whether or not the claimant’s belief in “imminent and serious” danger was reasonable, depending on the safe working practices the employer put in place.
6. Whistleblowing: raising concerns about employer’s conduct
The raising of concerns about how an employer is handling workplace issues during the coronavirus pandemic would count as a disclosure. To be protected under whistleblowing legislation, the worker must be making the disclosure in the reasonable belief that they are doing so in the public interest.
This means that a worker who is dismissed (for example put to the top of the list for redundancy), or subjected to a detriment (for example bullied), for raising genuine concerns about their employer’s safe working practices could bring a whistleblowing claim.
Another scenario that could lead to a whistleblowing claim is an employer retaliating against an employee who has raised genuine concerns about its use of the Coronavirus Job Retention Scheme. HM Revenue & Customs has a hotline for reporting misuse of the scheme, which could include employers requiring employees to continue working during furlough (contrary to the scheme’s rules).
We could see the term “furlough fraud” being used frequently in whistleblowing proceedings in the next few years.
7. Flexible working requests: when are employers’ decisions discriminatory?
While the law on the right to request flexible working has not changed, employers are likely to be seeing a shift in employees’ expectations around flexible working. Employers that turn down flexible working requests, or agree to them only in part, could find themselves having to justify their decisions later in an employment tribunal.
Some employees who have been working flexibly for a sustained period during the pandemic may wish to make this arrangement permanent. The employee may be able to show that they have continued to perform to the required level, or even exceeded expectations, with these changes in place.
This shift in emphasis means that employers that have previously been reluctant to agree to significant changes to working arrangements, such as allowing homeworking some or all of the time, may need to rethink their approach.
Now more than ever, employers need a strong reason for refusing flexible working requests, or could find themselves on the losing end of indirect disability, sex or age discrimination cases.
8. Handling discipline, capability and grievance procedures
How employers have been handling disciplinary and grievance procedures is sure to be examined by employment tribunals in the next couple of years. Claims are likely to involve:
- disciplinary action where employees refuse, or fail, to comply with the employer’s Covid-19 rules put in place to reduce the risk of transmission;
- the handling of any non-Covid-related disciplinary action that is continuing, or commencing during the pandemic; or
- the handling of other processes, such as grievance and capability procedures.
Claimants may focus on delays caused by the pandemic tainting a process’s overall fairness, and remote meetings and hearings being conducted unfairly. The Acas code of practice on disciplinary and grievance procedures will have to have to be interpreted in new and unusual ways.
9. Disability discrimination: reasonable adjustments for disabled workers
The number of disability discrimination claims reaching an employment tribunal could substantially increase in 2021. For years to come, employment tribunals will be assessing:
- how employers considered their disabled employees’ requests for flexible working, particularly when it was reasonable to allow the employee to work from home and what equipment was provided to help with this;
- where a disabled employee’s job does not allow for homeworking, what additional safe working adaptations employers put in place to allow the employee to work safely despite their health condition;
- if an alternative role was available, when it would have been reasonable to transfer the employee to that role; and
- if the employer made use of the Coronavirus Job Retention Scheme, whether or not furloughing a disabled employee would have been an option.
A number of disability discrimination claims seem destined to focus on mental health. For example, did the employer do enough to help employees experiencing mental ill health during the pandemic? Cases could revolve around what support was given in stressful working environments (such as the NHS) and to employees who may have been left isolated and facing an uncertain future (for example those on long-term furlough).
10. When will long Covid count as a disability?
Managing employees with “long Covid” is likely to be an important issue for employers in the next few years.
While there is no agreed medical definition yet and patients’ experiences can be wildly different, symptoms can include feeling fatigued all the time, persistent pain, headaches, ongoing breathing difficulties and long-term loss of smell and taste.
For employment tribunals faced with a long Covid sufferer’s disability discrimination claim, the first question will be whether or not the claimant was disabled at the time of the employer’s alleged mistreatment or inaction.
Under the Equality Act 2010, a person is disabled if they have “a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.
An impairment is “long term” if it has lasted 12 months, or is likely to last 12 months or for the rest of that person’s life. The Equality Act also covers conditions that fluctuate and are “likely to recur”.
In 2021, employment tribunals could face difficult questions about if, and when, an individual’s long Covid symptoms meet the definition of a disability under the Equality Act.
Procedural rules relaxed to tackle claims backlog
The employment tribunal rules of procedure were amended on 8 October to address delays caused by the increase in cases following the abolition of tribunal fees in 2017 and the impact of the coronavirus pandemic. Changes include:
- allowing legal officers to carry out delegated administrative tasks currently performed by employment judges;
- providing the option for non-employment judges with employment law experience to be deployed to employment tribunals; and
- widening the scope for multiple claimants/respondents to submit their claims/responses on the same ET1/ET3 form, if their claims give rise to related issues of fact or law, or if it is otherwise reasonable for them to be submitted on a single form.
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