In the same way that Employment Tribunals (ETs) increased following the 2008 banking crisis (and the resulting economic crash), there is a similar pattern in terms of numbers emerging today.
The latest figures published by the Ministry of Justice (MoJ) show a sharp increase in cases brought to ETs. Alongside this is an increase in disputes which focus around working time and age discrimination, created by the increase in unemployment and altered working conditions. The report explains that these cases have been instigated by the effects of the Covid-19 pandemic.
Even in these difficult times of new legislation, regulation, and ever-changing complex government guidance, most employers still have their best interests at heart. However, despite good intentions, when addressing the changes caused by such unusual circumstances, employers seemingly fail to follow procedure with issues such as redundancy or retirement and make unnecessary mistakes which leave them open to claims and litigation.
The rise in claims throughout this forthcoming and uncharted period is inevitable (especially as, since July 2017 the Supreme Court abolished fees). However, there are measures that businesses can take to limit their chance of contributing to the rising statistics, reducing potentially significant reputational and financial risk. ET’s can be a lengthy, costly, emotionally draining and commercially time-consuming process. But as a legal obligation, they need to be given the appropriate attention if they do occur.
It can happen to any employer
Prevention is always better than cure, and going about things in the “right way” is crucial – but what does this really mean?
There is always a risk that a disgruntled employee, or group of employees (as highlighted by the latest statistics) who are exposed to changes in workers terms and conditions and large scale redundancy exercises, will react and look for unfair dismissal claim opportunities. Therefore, businesses should at very least keep the following in mind:
- Keep a clear paper trail of all procedures and plan ahead
- Get advice early and engage with the appropriate legal team and expert redundancy support service
- Follow a reasonable process and make it fair and transparent, as failure to do this makes cases easier to prove
- Learn from your mistakes and make changes and improvements following any potential or successful claim
- Review all decisions and carefully consider selection criteria to avoid direct discrimination claims at tribunal – “getting rid of older staff” for example.
- Redundancy is not a hidden method of breaching employment rights, either intentionally or in error
- The most common ET claim is for “unfair dismissal” and a negative outcome for an employer could represent compensation to the claimant of a full years (gross) wages
What are the new trends?
Despite this however, scenarios are ever-changing and unlike the increase in cases in 2010, there is a different driver highlighted in the most common claims now appear to be derived from age discrimination and working time disputes. The situation is further heightened by claimants having “less to lose” and disputes previously resolved ahead of the tribunal are being made additionally complicated by the disgruntled employees.
With the increase in claims and the delays in hearings caused by COVID restrictions, the ETs are overwhelmed, and the delays are adding extended stress, workload and concern to all parties involved. In an attempt to deal with demand, temporary capacity (in the form of Nightingale courts) and tribunal via video link is being utilised to give judges the option of conducting remote hearings – offering more capacity.
This increase in claims should send a clear message to employers to ensure that they are dealing with ALL aspects of staff management in accordance with the latest employment law, especially as it is expected that there will be a further surge triggered by additional redundancies at the end of the furlough scheme later this year. Having said that, it’s worth remembering that in some instances, the backlog of claims may allow some employers to “take advantage” of hearing delays and utilise the time to defend claims and potentially negotiate more commercially in the extended period available. This will be especially important as this comes at a time when analysis reports are showing that three in ten dismissal cases are being withdrawn due to workers facing an average of 34 weeks for a decision. This is a result of courts prioritising pandemic-related claims on health and safety grounds.
When to seek help?
Even the smallest and “family-friendly” companies can be impacted by a change in the situation and it cannot be emphasized enough – it’s not just big organisations that need to manage these issues.
Knowing when to seek help is crucial and can assist in avoiding some of the most time-consuming and complicated employee difficulties that can arise. Whether a business relies on in-house HR expertise or an outsourced HR service, the burden remains and as a rise in employment disputes seems inevitable, the ET service will become increasingly impacted and hearings delayed even further. This pandemic-induced situation has prompted a review of how to improve the employment tribunal operation and various proposals including extending time limits have been made.
Additionally, consideration is being given to increasing the powers of tribunals, giving them the ability to consider claims of breach of contract brought by employees and workers whilst they are still employed.
All businesses face problems with employees from time to time, so in preparation and as part of the responsibility for employing staff, it is key to ensure that leaders understand their responsibilities, train their management, act early and appropriately when things go wrong, consider all the options and move forward positively. Instructing the support of an outsourced HR service may make the difference between a positive and negative outcome and having the right advice regarding ET’s is essential.
Nicky is Head of Organisational Change and HR Services at Connor who provides HR support to small businesses. She has an extensive background that includes roles in Sales and Marketing, Procurement Consultancy, and HR business partnering.