10 Covid-related tribunal claims that are on the rise

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The coronavirus pandemic has seen many businesses forced into a new way of working, having to adapt and react quickly to the changing landscape. Many businesses have also had to go through redundancy processes or restructuring, and now research by law firm GQ Littler shows an increase in the number of claims received by employment tribunals has jumped by 17%*.

In light of this increase, we’re highlighting 10 employment tribunals claims on the rise and steps you can take to reduce the risk.

1. Working Time Claims

Working time complaints are a common claim. These claims will be for things like underpaying for holiday and breaching the working time or rest break rules.

Top tips
  • Keep a track on remote workers’ hours to ensure they don’t exceed 48 hours a week on average (unless they’ve opted out). You could introduce time sheets and check for signs of excessive working hours, such as emails sent at night.
  • Make sure your employees know they’re entitled to a rest break after 6 hours’ work and an 11-hour break between each working day.
  • Top up furloughed workers’ pay to 100% of normal pay during annual leave.
  • Allow staff to carry over unused holiday if it wasn’t reasonably practicable to take it due to Covid

2. Furlough complaints

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). The lack of clarity within the government’s guidance on agreement to furlough means that there could be trouble for employers that have unilaterally imposed a pay cut on furloughed employees. Although there has been much debate about whether this is necessary, the safest approach is to obtain individuals’ written consent before you cut their pay to 80%. Alternatively, reach a collective agreement with their trade union.

Decisions about who to furlough could lead to discrimination claims. Some employees may be unhappy they were selected for furlough, resulting in a pay cut. Equally, others may be unhappy they weren’t selected if they were having childcare issues, health problems or had vulnerable family members.

While employment tribunals are likely to be sympathetic to employers that had to make quick decisions, normal employment law principles should have been applied to any furlough selection process. You should check you’re acting as fairly as possible in the circumstances and document the business reasons for your furlough decisions.

3. Redundancies, selection and changes to terms and conditions

Unfair dismissal and discrimination claims in relation to redundancy are already common in employment tribunals. Unfortunately, many businesses have had to carry out large-scale redundancy or ‘fire and rehire’ exercises, often with little warning as a result of coronavirus.

Top tips when carrying out redundancies or reorganisations
  • Failure to warn and consult individually with an employee about their proposed redundancy could result in an unfair dismissal claim.
  • Use non-discriminatory criteria when selecting people for redundancy (eg the standard of their work, disciplinary record, relevant skills etc).
  • Consult individual employees and discuss alternatives to redundancy (eg furlough).
  • If necessary, comply with the collective consultation rules
  • If you’re proposing changes to terms and conditions, consult staff or negotiate with their trade union and try to obtain agreement for the changes.

4. Flexible working disputes

The law on the right to request flexible working has not changed, however employers are likely to be seeing a shift in employees’ expectations around flexible working. This shift means that employers that have previously been reluctant to agree to significant changes to working arrangements may need to rethink their approach.

You must have a good reason for refusing a flexible working request, otherwise you could face an indirect discrimination.

5. Age Discrimination

According to the Office for National Statistics, 63% of jobs lost (437,000 jobs) in the last year since the first lockdown commenced were held by people under 25 years old.

Many roles that have disappeared were in the hospitality or retail sectors, which both traditionally employ younger people. However, the rise in age discrimination claims would suggest that some younger workers believe they have been unfairly selected for redundancy or furlough over older colleagues.

You must use fair selection criteria when deciding who to put in your redundancy pool or place on furlough. ‘Last in first out’ as your sole criterion for making job cuts, is likely to be age discriminatory.

6. Health and safety towards pregnant workers’

Employers have a duty of care to look after the health and safety of every employee, but for pregnant workers they have additional obligations.

You must assess and minimise risks to a pregnant worker when the employee informs you that she’s pregnant and then reassess as the pregnancy progresses. The government has explicitly stated that after 28 weeks’ pregnancy you must take extra care to reduce Covid risks.

It may be that you need to make workplace adjustments or reassign the worker to tasks she can do from home. Furlough is another option (with the woman’s consent).

Employers that fail to fulfil these obligations could face pregnancy and maternity discrimination claims.

7. Health and safety – refusal to attend a dangerous workplace

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. It could be because the employee does not believe the employer has put in place safe working practices.

Employees are protected against detriment or dismissal where, in “circumstances of danger” that they reasonably believe to be “serious and imminent”. There is undoubtedly a danger during the Covid-19 pandemic of contracting the potentially deadly virus, but there must be actual “circumstances of danger”.

An employment tribunal has now ruled that an employee wasn’t unfairly dismissed for refusing to attend work due to Covid fears.

Top tip
  • If you’ve had a claim lodged against you under the ‘serious and imminent danger’ provisions, you should discuss the impact of Rodgers v Leeds Laser Cutting Ltd with your legal team.

8. Whistleblowing complaints

The pandemic response has heightened the risk of whistleblowing claims. 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. Concerns raised in good faith (even if they turn out to be unfounded) about you not following the Covid-secure guidelines or committing furlough fraud will meet this test.

If you dismiss the person (for example put to the top of the list for redundancy) or subject them to detrimental treatment (for example bullied) for raising a genuine concern of this type, they could claim automatic unfair dismissal.

Top tips
  • Follow the government’s guidance on workplace Covid precautions and on claiming furlough support.
  • Have a procedure in place for investigating whistleblowing allegations.
  • Train your managers so they can recognise a whistleblowing complaint as opposed to a normal grievance.
  • If you’re going through a redundancy process, always score individuals against objective selection criteria and don’t be influenced by any complaints they have raised.

9. Disability discrimination

To minimise the risk of disability discrimination claims, you should:

  • Act impartially when furloughing staff.
  • Make reasonable adjustments so someone who has been shielding can return to work safely.
  • Make reasonable adjustments for someone diagnosed with long Covid.
  • Support your employees’ mental health during the pandemic and Covid restrictions.

An individual will only be able to bring a claim if their condition is serious enough to amount to a disability under the Equality Act 2010. You may therefore need to get medical advice on their condition and potential measures to keep them safe.

10. Disciplinary and grievance issues

You may be experiencing more disciplinary and grievance procedures than normal. Claims may involve:

  • disciplinary action where employees refuse, or fail, to comply with the employer’s Covid-19 rules
  • the handling of any non-Covid-related disciplinary action that is continuing
  • the handling of other processes, such as grievance and capability procedures
  • underperformance by staff working from home

You must follow a fair procedure for dealing with problems, as set out in the Acas code of practice, and avoid delays as far as possible. To carry out disciplinary and grievance hearings remotely, Acas has issued guidance.

Document your decisions

It’s been a challenging time for both employers and employees, and it is quite possible you may experience one or more of the scenarios outlined. However, if you incorporate fairness and honesty into every aspect of your business, and document every step and decision, this will ensure you’re as prepared as possible if a case went to tribunal, or maybe even prevent them in the first place.

To discuss how outsourcing HR can support your business, email hrmail@nicholsonsca.co.uk or complete the contact form.

* https://www.gqlittler.com/resources/news-and-views/covid-19-drives-employment-tribunal-claims-up-27.htm

Posted in Blog, HR.