Charlotte’s predictions on where employers could be at risk…
2021 has almost been as unpredictable as 2020. What we thought we knew last year has changed beyond all recognition 12 months on.
In the employment context, it would have been difficult for anyone to have predicted some of the shifts which we have seen occur over recent months and the entire labour market of workers and bosses alike is having to get used to some different ways of working and some brand new operational, financial and personal pressures.
We know that the Employment Tribunal system is working through a backlog and we know that furlough has distorted the reality for many businesses and workers but now, as we are all forced to work within and embrace the ‘new normal’, the reality of employment litigation is set to return with a vengeance and employers need to be prepared.
There have been a number of shifts over the last 12 months which mean that we are now potentially on the precipice of an Employment Tribunal overload and whilst there are many options for employees who wish to lodge a complaint with an Employment Tribunal, SME businesses should pay particular attention to the following, each of which could result in you ending up being sued before Christmas.
Redundancy dismissals following Furlough
Up to a million workers have been on furlough for the entire duration of the Coronavirus Job Retention Scheme. Whilst the CJRS has now ended, business is yet to return to normal for many especially those who operate in sectors which continue to be hindered by government guidelines and restrictions. Further, businesses which have returned to normal have done so without the services of furlough employees which leads to a question being asked about the need for certain staffing structures.
Employers who believe that they have a need to make redundancies following the end of the CJRS need to address this belief very carefully. There are not only strict legal consultation obligations to be met, but employers are able obliged to consider possible alternatives to redundancy including reduced hours, lay-off, reduced pay before terminating employment. Employers who fail to follow proper process and/or establish a genuine need for redundancies run the risk of employees, with nothing to lose, bringing claims including unfair dismissal and unlawful discrimination.
Failing to pay proper holiday pay to employees who have been on furlough
Holiday entitlement calculations can be tricky at the best of times but the rules on the accrual of holiday pay during furlough have not always been straightforward. Employees who have not taken any holiday during furlough are entitled to have it rolled-over, in addition to ongoing accruable leave, for two years. Contractual provisions on holiday pay also need considering and bank holidays do not always class as a distinguishable type of leave.
Employers who get the calculations wrong; refuse to allow the roll—over; unlawfully force employees to take holiday all risk being sued in the Tribunal.
Unreasonable response to a flexible working request
Employees already have a right to make a flexible working request subject to meeting certain eligibility requirements and the law has not changed in this respect. What has changed however, is the understanding around home working which, we know, for the most part can work. Many employers have implemented a home working or hybrid working policy but, some have not and are asking employees instead to make a flexible working request if they want to adjust their normal location of work. This is fine but employers will now have to demonstrate an increasingly robust business case for refusing any such request given, not only the fact that they may have been able to accommodate it during the heights of the pandemic but also the reasons for the request in the first place.
Any request which is based on a protected characteristic or for needs including caring responsibilities need additional consideration and employers who fail to properly apply their minds to a flexible working request and/or who refuse to even offer trials could find themselves on the wrong side of a Tribunal claim.
Dismissing employees with Long Covid
Long Covid is very likely to be classed as a disability in some cases. Employees with Long Covid therefore will have the right for certain reasonable adjustments to be considered prior to any decisions being made about termination of employment on grounds of health (Click here to see our White Paper on this topic). Employers who fail to properly take into account their obligations under the Equality Act 2010 when dealing with employees with Long Covid risk not only unfair dismissal claims but also unlawful discrimination claims.
We have a free webinar regarding the above, click here for more information and to reserve your place.