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How to avoid COVID-related Employment Tribunals in 2021

Employment Law claims caused by the impact of the Coronavirus are undoubtedly on the rise, and experts predict a further increase in 2021 if employers don’t follow guidelines. 

The knock-on effect of the rise in single claims has subsequently meant that the number of outstanding Employment Tribunal cases has increased to 31% (37,000 cases) between April and June 2020. Issues around the Government’s furlough scheme, handling the redundancy process correctly, health and safety concerns and the rise of flexible working are all common traps that employers fall into which could lead to employment tribunals.

To help avoid falling prey to these common mistakes, we highlight 10 COVID-related issues that you need to steer clear of in 2021. 

  1. Reducing an employee’s pay to furlough them

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”. 

If employers are reducing an employee’s pay to furlough them, they should obtain the employee’s explicit written agreement, as this constitutes a variation to their terms and conditions of employment.

2. Selection for furlough 

How you select which employees are to be furloughed may come under scrutiny in 2021. Choosing which employees to furlough should be as fair and objective as possible. Where possible, you should prioritise a small group of people who may be caring for their parents and are struggling to maintain the working balance with their caring responsibilities and those who may need to shield and classed as ‘vulnerable.’

3. Selection for redundancy

With many employers having to make quick and large-scale redundancies, employers still need to follow a fair selection process. This should include a collective consultation process for 20 or more employees from a single location over a period of 90 days or less. Failure to comply can result in a protective award of up to 90 days’ pay for each affected employee.

4. Health and Safety obligations toward pregnant employees

Whilst also ensuring that your workplace is safe to work in throughout the coronavirus pandemic to reduce the spread of infection, employers also need to also ensure that risks to pregnant employers are assessed regularly. This 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 expectant employees on full pay may also be an option to consider.

5. Workplace health and safety – refusal to work in dangerous environment 

A common scenario has been that the employee feels their employer has not done enough to promote a ‘safe’ working environment and refuses to come into the office.  

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. 

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: employer’s conduct 

Raising 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 employee must be making the disclosure in the reasonable belief that they are doing so in the public interest.

The term “furlough fraud” is likely to be used more in whistleblowing proceedings in the next few years, relating to an employee who is dismissed (i.e put to the top of the list for redundancy) or subjected to bullying because they have raised genuine concerns about how their employer is handling safe working practices and bringing a whistleblowing claim.

7. Managing flexible working requests

Employers are likely to be seeing a shift in their employees’ expectations around flexible working. Turning down requests for flexible working requests could see themselves justifying their decisions in an employment tribunal. 

Employers who 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.

8. Handling disciplinaries and grievances

How employers handle disciplinary and grievance procedures is likely to be put more into the spotlight. This might include: 

  • 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.

This could see the Acas code of practice on disciplinary and grievance procedures to be interpreted in new and unusual ways in the future.

9. Making reasonable adjustment for disabled workers

The number of disability discrimination claims reaching an employment tribunal could substantially increase in 2021. They will be assessing how employers handle 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;

A number of disability discrimination claims have focused around 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. COVID as a ‘disability’

Managing employees with “long COVID” is likely to be an important issue for employers in the next few years.

The long term effects of COVID can include feeling fatigued all the time, persistent pain, headaches, ongoing breathing difficulties and long-term loss of smell and taste.

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.

If you would like support and guidance to help avoid these issues and prevent you from going through lengthy and costly employment tribunals, contact us for expert advice. 

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