The rise of Covid-19 related employment tribunalsby
How accountants can protect themselves and their clients from ending up in front of a tribunal with a Covid-19 related case.
Over 18 months on from the start of the pandemic here in the UK we’re seeing the impact this extraordinary period has had and continues to have on employment tribunal cases, with the tribunal system suffering an overwhelming backlog of work to get through as a result of having to operate with a skeletal staff for a period of time.
The latest employment tribunal case statistics from January to March 2021 show a 13% decrease in individual claims, but a 14% increase in multiple claims when compared to the same time in 2020. In addition, the outstanding caseload was 39% higher for single claims and 34% higher for multiple claims when compared to last year.
Even prior to COVID-19, employees could face a wait of up to 12 months for a case to be heard, which had not improved this time last year, and while the Tribunals Service is taking steps to remedy this by recruiting more staff and employment tribunal judges, the sheer volume of cases involved is going to make it a difficult task.
The end of the furlough in September 2021 meant that nearly one million workers were facing redundancy situations which had until this point been avoided as a result of furlough. A potential increase in redundancies, allied with more employees returning to the office and issues around whether employees need to be vaccinated and what steps employers have taken to make their workplaces safe all point towards an increase in the potential for cases being brought against accountancy businesses and their clients.
We are seeing more and more cases related to COVID-19 come through the tribunal system, and while they are only first instance decisions and therefore not binding on other tribunals, they serve as a useful reminder of the steps that businesses can take to help mitigate the risk of facing additional tribunal claims.
Below are a few useful reminders of considerations for accountancy businesses and their clients.
How to avoid a COVID-19 related tribunal case
In Handley, the dismissal of an employee for redundancy despite the existence of the furlough scheme did not make his dismissal unfair and in Mhindurwa an employee was unfairly dismissed in the early months of the COVID-19 pandemic because her employer hadn’t considered furloughing her.
While the furlough scheme has now ended, these judgments show the importance of employers considering all options and alternative means to avoid redundancy. It is difficult for a tribunal to criticise an employer where they have considered the options, balanced everything up and made the decision to cut costs.
It is also important for accountancy businesses, and their clients, to ensure that they have put in place measures to protect the health and safety of their employees, customers, and clients. This will help to assist the transition of employees back into the workplace but it is worth bearing in mind that what is reasonable or necessary in each case will differ.
It is crucial to be open to feedback from employees and remedy situations that arise. In Gibson v Lothian Leisure Mr Gibson was a chef who had been asked to come back to work and raised concerns about the lack of PPE and a non COVID-19 secure working environment.
When he raised these concerns, rather than seek to discuss them and determine if his issues were reasonable or could be resolved, Mr Gibson was dismissed by text message without notice or accrued holiday pay. Accountancy businesses should look to consider whether any such concerns are realistic, look to engage with their employees about the concerns and take reasonable steps to address those concerns before considering any alternative actions.
The case of Kubilius v Kent Foods Ltd is another useful reminder for accountancy businesses about the importance of ensuring that employees adhere to the reasonable measures they have put in place to protect them and their colleagues and visitors to the workplace, but it also shows that it is possible for employees to be dismissed for failing to adhere to those safety measures, provided there are policies in place and they are clearly communicated to employees. In these instances, and regardless of COVID-19, it is always important to follow a fair process and determine what, if any, the reasons are for the employee breaching those safety measures.
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Barry Ross, director and partner at Crossland Employment Solicitors, has been practising Employment Law since 2006 when he worked in-house for major legal expenses Insurance provider, DAS. There, he provided employment law advice across a whole spectrum of issues to commercial and individual clients. Barry provides commercial advice on all...