Covid-related tribunal claims are on the rise
The coronavirus pandemic is giving rise to an increased number of employment claims which are up 27% as businesses have been plunged into a new way of working, faced new risks in the workplace and in many cases been forced to go through redundancy processes completely remotely.
Research conducted found the number of claims received by employment tribunals jumped by 27 per cent over the last year, equating to 42,392 cases – more than 6,000 higher than the previous 12 months.
This jump represents a significantly faster increase than the 7 per cent rise that occurred between 2017-18 and 2018-19 when the number of employment claims rose from 34,115 to 36,336. The spike in claims is down to the broad range of employment law risks caused by the pandemic and its adverse impact on the economy. It is unrealistic to expect that you can go through such a huge change in working practices and a severe economic downturn without creating a sharp rise in disputes between employees and employers.
The pandemic has created HR challenges for employers that they have never faced before. While employers have often met this huge logistical challenge well, it is not without a cost.
The volume of tribunal claims was “an inevitable aftermath from the first catastrophic Covid hit last year with the full impact yet to be felt. We are yet to see the fallout of further redundancies likely to come from spring onwards of this year,” she says, adding that “poor practice in not managing health, wellbeing and other employee concerns would likely amount to further claims”.
As well as putting pressure on employers, the courts are being strained by this growing backlog of cases. The average waiting time for single claims of unfair dismissal and discrimination is currently around 38 weeks, employers and employees who face long periods of damaging uncertainty ahead of hearings.
Despite delays, employment tribunals are still functioning throughout these latest restrictions, so any internal employee procedures – contentious or not – need to continue happening even if that means conducting meetings online. It has been proven that even difficult and complex investigations can take place remotely.
After a year of working in a remote environment, there is unlikely to be much sympathy for employers – or employees – who now try to use this third lockdown as a reason to delay or frustrate HR processes.
Employee engagement, including transparency over business performance, is one of the best ways to protect a business reputation as an employer. Most employees will appreciate openness and honesty rather than sugar-coated lies.
Working parents lying over home-schooling
A lack of flexible working options has forced many employees to lie to their bosses during lockdown.
One in three (33%) working parents have admitted to bending the truth around home-schooling according to a new poll by HR payroll advisor MHR International.
It found that working parents have been reluctant to tell the truth about how they are coping with the balance between home schooling and work. Many parents feel they are under pressure, with 42% reporting their employer had failed to offer flexible working options to ease the burden of home schooling.
These findings come after the government updated its guidance on which employees can access the furlough scheme.
Employers can choose to furlough employees to enable them to home-school their children while COVID-19 restrictions require schools to close.
Nearly a quarter (23%) of parents said in the poll they have not felt confident enough to ask or considered asking for greater flexibility so they can educate their children and do their job.
A further 13% of respondents said they have had to take unpaid leave to support their children with home learning.
Solutions such as flexitime or compressed hours to allow parents the necessary time to home school and avoid the guilt factor can be considered. No two families are alike, and a flexible mindset based on real understanding of how employees can be supported is required on the part of the employers to make this incredibly difficult time manageable.
Employers failing to tackle age bias in recruitment
Employers are failing to identify and tackle age bias in recruitment processes despite not viewing ageism as a problem in their businesses. In a new report, the most common response from employers regarding older workers was that they ‘have poor IT skills’ or look ‘worn-out.’
The Centre for Ageing Better has warned that such attitudes towards older workers risk them being shut out of employment, especially as more are made redundant in the months ahead.
Due to the COVID-19 pandemic, unemployment among over-50s has risen by a third since 2019.
Based on the number of workers furloughed in August, the charity estimated more than 400,000 over-50s could be made redundant when the furlough scheme ends. The report found no evidence that employers use approaches specifically aimed at de-biasing the recruitment process for older workers. It also found very little evidence that employers evaluate the effectiveness of initiatives that are meant to reduce discrimination more generally.
It was reported that age should not be overlooked when employers are considering diversity and inclusion.
Many employers who participated in the research believe that their workforce is age diverse, and therefore consider age less of a priority to address in recruitment. However, many employers acknowledged that they do not currently analyse recruitment data in relation to age, so cannot be certain that bias does not exist within their recruitment processes.
It was recommended that businesses rethink their recruitment process and adapt to more inclusive recruitment techniques. Otherwise, businesses will miss out on a wealth of talent and experience if they don’t do so.
Majority of UK employees feel unsafe in their workplace
Experts warn of ‘crucial’ need for businesses to prioritise flexibility and building safety for those unable to work remotely.
The majority of UK workers do not feel safe working on their employer’s premises, a survey has suggested, with many still worried about the risk of Covid transmission.
A poll of employees found that nearly three-quarters (71 per cent) of respondents did not feel completely safe in their workplace, with half (51 per cent) worried about contracting coronavirus by coming into contact with contaminated surfaces.
The research, which polled 500 UK workers who are usually based in large buildings with 500 or more people, also found that just 45 per cent of workplaces had safety protocols in place such as social distancing and mandatory mask wearing. This was despite the majority of respondents (51 per cent) citing such measures as fundamental to making them feel safe at work.
Workers were also unhappy about their future safety. Nearly two-thirds of those polled (62 per cent) believed their management was more likely to make short-term changes in response to coronavirus rather than making long-term investments in building systems needed to keep workers safe. Similarly, 43 per cent cited concerns that building management would not consistently enforce health and safety guidelines.
The findings have prompted renewed calls for businesses to urgently offer flexible working wherever possible and to put more effort into safety where employees are required to come into the office.
Where it’s necessary for workplaces to be open, employers need to double down on their efforts to make them Covid secure. Businesses need to consult with workers about their queries and concerns and to have better lines of communication with their facility managers.
Pay rises and bonuses will be sparse for white-collar workers
Just five per cent of white-collar professionals have been told they will receive their January bonus, despite working all of 2020, putting pressure on businesses to provide alternative bonus incentives.
This could create tensions among those who were not furloughed last year and have already been told they will not receive a pay rise in 2021.
Additionally, 19% of white-collar workers said they have assumed that they will not receive their annual bonus. The same percentage said they had received official confirmation from their employer that their end-of-month January appraisals would not include their usual bonus package.
In spite of this, unions have stated that key white-collar workers, such as those in the NHS, deserve recognition in terms of pay.
It is likely that bumper bonuses are likely to go down very badly against a backdrop of economic gloom and a pandemic, especially where the business has taken on government support or made redundancies since March.
However, many sectors have performed well in the last year, and employees who have worked extremely hard under challenging conditions will feel rightly aggrieved if their performance is not rewarded.
A third of workers stated that they felt optimistic about receiving their anticipated pay increase this year. Only 4% of companies however said they would be ‘very likely’ to offer previously promised pay increases.
Employee performance such as achieving objectives (63%) continued to be the leading determination for salary increases throughout 2020, the same as in 2019.
Industry and business performance was the second most popular incentive for a pay increase (38%), and level of business-critical requirement came third (25%). Controversially, employee potential and going above and beyond during the pandemic (25%) came in as the fourth highest incentive for receiving a pay rise.
Thompson said: “Whilst it might seem prudent not to pay bonuses and to “wait and see”, employers leave themselves open not only to legal challenges from their staff but also raids from competitors who spy an opportunity to lure their top talent.” The findings come from recruitment consultants Robert Walters annual 2021 Salary Survey.
A third of Brits are working longer hours whilst at home
Whilst many people across the UK enjoy the advantages that working from home can bring such as having no commute, in some parts of the UK many people are struggling to adjust to their new work-life balance.
In a survey carried out on the UK workforce by Liberty Games’, research found many Brits are struggling to separate their work and personal life, with 41% admitting to often working through their lunch break and 38% were more likely to work longer hours than normal. On top of this, the survey also found that 29% of Brits were more stressed working from home. Glasgow was amongst the top 10 most stressed cities in the UK, with 38% of their workforce feeling more stressed whilst adapting to their new working environment. Edinburgh on the other hand had only 13% of workers feeling stressed, suggesting that they are coping better than other parts of Scotland.
Although, feelings of stress are not entirely surprising given that the working environment that many once knew as ‘normal’ has entirely changed and now relies on most communication done via a computer or a phone. The reliance on technology greatly limits almost all social contact for some and also increases instances of miscommunication. The survey also found that of those feeling more stressed, this was due to many struggling to concentrate, feeling bored, and being less productive. Therefore, despite more people working for longer hours, the work that they are producing may actually become less efficient and eventually lead to burnout. To avoid this, many people feel that distracting themselves and playing games such as puzzles and sports games helps them to unwind and de-stress whilst working from home.
Pregnancy discrimination payout
An Employment Tribunal has ruled that an employee was treated unfairly by her employer after her manager told her that she should resign because of her pregnancy and pregnancy-related illness. Additionally, the tribunal found that the company had discriminated against her after changing her hours and work location when she sought to return from a period of pregnancy-related absence.
The employee worked from 9am to 3pm, and then from 4.30pm to 5.30pm from home. This was agreed in her offer letter. In practice, this arrangement did not work out as the employee needed access to the computer in the office to work efficiently. However, the employee told the tribunal that the flexible working arrangement only changed when her employer was informed of her pregnancy, after which she was required to work in the office full time.
Evidence was presented to the tribunal that the employee had pregnancy complications and it was only in a conversation in which she informed her employer that she needed to attend hospital, that her pregnancy was revealed. There were several more appointments in the early stages of her pregnancy which caused her to have time off work.
The manager gave evidence to the tribunal that he had planned to change his employee’s hours and working from home arrangement earlier that year and had drafted an email to send to her raising the issues, but after a discussion with another member of staff did not send it.However, the tribunal found no evidence of any clear instruction or requirement, or even a decision, to seek to formally change the employee’s working hours. The tribunal accepted the employee’s evidence that, if she had been told that was what was required of her, she would have told her employer that she was unable to do so because of her childcare commitments.
The employee was then told that she had been selected for redundancy, the timing of which the tribunal found consistent with her account of being told that she should resign if she was not able to attend the office during the hours required by her employer. In short, the tribunal found that the employer would not have taken this action if the employee had not told him that her absence was pregnancy-related.
The Judge found that if the employee had not been off with pregnancy-related illness, the requirement to work in the office between the hours of 9am to 5:30pm would not have been imposed on her. There was no evidence that the company intended to take any steps to change her working arrangements until she was off sick for a pregnancy-related reason.
The employee was awarded £18,405.97 for loss of earnings and injury to feelings, plus uplift and interest.
Upheld grievance leads to constructive dismissal
An accounts assistant who was led to the middle of an open plan office and “berated” in front of his colleagues for several minutes was constructively unfairly dismissed, a tribunal has ruled. The Judge found that the employee was subjected to “significant incidents of bullying” from management during his employment which was likely to “destroy or seriously damage the relationship of trust and confidence”
The employee had worked for the London insurance underwriting firm for four years with no formal issues before the bullying incident. His manager described his performance as “good” in 2017 and 2018. However, at the end of August 2017 a member of the team went on long-term sick leave and the employee had to undertake additional work he was inexperienced dealing with. Another colleague left in 2018, which again saw the employee undertake work he was not experienced in. Two members of the finance team told the tribunal they believed he “had not been given the appropriate training or guidance”.
In February 2019, the employee was “berated” by his manager in front of his colleagues about errors on a financial statement. This was not the first time he had been subjected to this behaviour and the “continuous ridicule” left him in a “vulnerable position” which caused him to feel stress and resulted in him making more errors.
He raised a grievance and was upheld by his employers, and in April 2019 his line manager was changed, but the employee was signed off work with anxiety and stress and on his return felt that he was being treated differently by several colleagues and a senior manager.
The atmosphere did not improve and ultimately, the employee felt that he had no choice but to resign as a result of the perceptible change in attitude towards him after he raised the grievance.
The Judge ruled that “coldness” from senior management contributed to his view that his employer “was not happy with him following his grievance, and it contributed to his view that the respondent no longer wanted him to work for them”, and as such his claim of constructive unfair dismissal was well founded. The Judge also concluded that the employee was subjected to bullying as no steps were taken by the employer to check his wellbeing after “significant incidents of bullying towards him”.
Even if a grievance is upheld, it is vital that employers treat the employee raising the issue with respect at all times. The way in which this employee was treated AFTER raising the grievance was the key factor in the finding of this tribunal.
Retirement plans put on hold
The pandemic is causing older workers to delay their retirement plans, according to a survey, which has raised concerns that the financial impact of coronavirus could be forcing people to work for longer.
A YouGov poll of 2,114 UK adults found that, among over-55s who planned to retire in the future, one in eight had made the decision to delay their retirement plans because of the pandemic.
The poll also highlighted financial concerns among older employees planning to retire. More than half of all UK adults said they were concerned about only being able to afford a limited lifestyle in retirement. The survey has suggested that retirement incomes have been affected by falling interest rates and the job prospects for the over-50s are difficult in the current climate.
There are more than 600,000 over-50s claiming universal credit, which is more than double the figure last year. There has been a call for the government to offer tailored initiatives to support the over-50s back into the workplace and financial incentives to businesses to encourage them to hire older workers who bring with them a wealth of life experience and wisdom.
Redundancy bumping: what is it and how does it work?
Many employers are facing difficult redundancy decisions and when doing so they must meet specific requirements to ensure the fair and lawful dismissal of employees. This includes having a genuine reason for any redundancy and following the correct redundancy procedure.
As part of a fair redundancy process, an employer should generally consider if they can offer an ‘at risk’ employee suitable alternative employment. This includes any vacant roles and can extend to considering roles that are not vacant. Where the alternative role is not vacant, but rather already filled by another member of staff, this is called ‘redundancy bumping’.
A bumped redundancy occurs when an employee (whose role is not at risk of redundancy) is dismissed as redundant and the resulting vacancy created by their dismissal is filled by the employee whose role was originally redundant.
Redundancy bumping, despite the potential injustice to the employee who is ultimately dismissed, is lawful, provided the correct procedure is followed in respect of the bumped employee’s dismissal.
The process of bumping can appear to be an unjust process, especially since it results in the dismissal of someone whose job role was not actually redundant. However, in legal terms, this can constitute fair grounds for redundancy. In cases where an employer fails to consider bumping of employees, this may actually constitute unfair dismissal.
The principle set by case law around bumping is that there is no strict requirement on an employer to consider bumping its employees in every redundancy case, nor is the employer under an obligation to dismiss another employee to preserve the employment of another member of staff. But if during consultation, the “at risk” employee looks at another role in the business and wishes to be considered for it, the employer must have a very strong reason for failing to do this. As always, the fairness of the dismissal will depend on the specific circumstances of the case and bumping is only one factor determining fairness.
It is also important to remember that it may not be sufficient to simply consider the possibility of redundancy bumping. To avoid a finding of unfair dismissal, you must also consult with the employee to explore whether they would be willing to consider a more junior role at a reduced salary.