Employees approaching employment tribunal rising due to COVID-19. The corona virus pandemic is giving rise to an increased number of employment claims as businesses have been plunged into a new way of working, face new risks in the workplace.
Employment Tribunal Claims on the effect of Coronavirus Pandemic:
- Breach of contract when cutting furloughed employees’ pay:
- Lack of clarity in the Government’s guidelines could lead to potential claims for employers who have unilaterally imposed a pay cut on furloughed employees. It should also be noted that “Any action for furloughed employees must be consistent with Equality and Discrimination laws.”
- Employers should ensure they have obtained the employees explicit written agreement. This is due to the action constituting a variation to their terms and conditions.
- Some employment contracts may give the right to lay off or place employees on
- Selection for furlough:
- Selection will be closely examined where either an employee is selected to be placed on furlough, particularly when it includes a reduction in pay, or when not selected. This group may include issues for parental care, sick pay being lower than furlough pay or employees with a high risk to infection.
- Selection process and informing and consulting employees is, as always critical and employers should ensure this is carried out in line with the normal advice.
- Failure to consult either individually or collectively may lead to an unfair dismissal result at Employment Tribunal.
- Health and safety
- Duties towards pregnant workers:
- Employers should ensure an individual risk assessment is carried out and any reasonable adjustments made which could include safe working conditions or even alternative work.
- Health and safety: refusal to attend dangerous workplace.
- The Employee must believe that they are in “serious or imminent danger” the consideration for the Employment Tribunal will be to consider if this belief is reasonable in comparison to the safe working practices they have introduced.
- Whistle blowing:
- It may be likely that an employee may consider raising concerns about employer’s conduct regarding the handling of issues in the workplace around coronavirus pandemic. The normal rules will still apply for the employee to whistle blow.
- Flexible working requests:
- As always, an employer must be able to show justifiable reasons for not accepting the request. They should also be aware that change to working procedures introduced during the pandemic may give way to employees being able to justify their request. However, in all circumstances employers should be aware of discrimination claims resulting in the decline of a request.
- Handling discipline, capability, and grievance procedures:
- During the time of this pandemic employers may have to face dealing with new issues through their disciplinary process around the lack of following safety procedures, put in place for COVID-19 -19. It is important that Employers follow their procedures as closely as possible and even in the event of Virtual disciplinary hearings then the same attention to fairness and proper procedure as normal.
- Disability discrimination:
- Once again reasonable adjustments for disabled workers must always be carefully considered and potentially even more so in these current times. Mental health and Long COVID-19 could be two of the issue’s employers may have to consider and what reasonable actions, if any, they have taken to support their employee.
How to avoid tribunal claims:
- Engaging with Specialists: Engage with HR specialists rather than looking for a quick fix.
- Transparency: best ways to protect a business’s reputation is openness and honesty rather than sugar-coated lies.
- Understanding & Empathy: Employers also need to be aware of what employers are experiencing their stress points, the difficult working patterns, personal lives, clients and working relationships and how can you address any issues before it becomes irretrievable.