Employers have had a lot to deal with since the start of the pandemic and an employment tribunal claim is not something any organisation wishes to add to their ‘to do ‘ list. To help your organisation stay ahead of the game, here are five coronavirus related tribunal claims employers should watch out for.
1. Whistleblowing claims
Employees are protected from being dismissed or subjected to a detriment, such as disciplinary action short of dismissal, because they ‘blow the whistle’ on certain types of wrongdoing or suspected wrongdoing, including that in relation to health and safety/legal obligations. As employees may be concerned about coronavirus and safety at work it’s likely that some employers could experience whistleblowing in their organisation.
One of the requirements for whistle-blower protection is that the employee must reasonably believe that the disclosure of information is ‘in the public interest’, it’s not difficult to envisage that there will be cases in relation to coronavirus where employees will be able to persuade a judge that this requirement has been met.
It’s important for employers to be able to recognise whistleblowing, not only so the matters raised can be dealt with appropriately, but also so employee protections aren’t infringed. It’s worth bearing in mind that there’s no limit on the amount an employment tribunal can award if an employee is subjected to a detriment or is automatically unfairly dismissed in connection with whistle-blowing, making these attractive claims for employees, particularly as there is no minimum length of service required for them.
2. Claims relating to flexible working requests
Some employers may start to see an increase in flexible working requests from employees. This could be driven by factors such as employees wishing to continue to work from home for all or part of their time or wishing/needing to change working arrangements to better fit their personal circumstances, such as childcare arrangements.
If your organisation receives a statutory flexible working request from an eligible employee bear in mind:
- It’s important to consider the request and deal with it promptly in a ‘reasonable manner’, the first step will usually be to meet with the employee to discuss their request.
- Employers can refuse a flexible working request on certain statutory grounds but it is important to be careful if doing so and to seek advice from Kingfisher Professional Services Ltd before acting.
- If a request can be accommodated it’s important to get it properly documented to avoid issues later on.
It’s important to be aware that if an employer doesn’t comply with their duties, fails to deal with a request in a reasonable manner or rejects an application for flexible working on incorrect grounds or facts, a tribunal can require reconsideration of the application and may award up to eight weeks’ pay (subject to the cap on the weekly pay limit in force at the time).
More concerning for most employers is that in some circumstances an employee may be able to bring a claim for discrimination (such as for indirect sex discrimination) in addition to, or instead of, any other claim they may have. Depending on the facts, it can be possible that an employee could claim that they have been constructively unfairly dismissed by the way their application is dealt with or by its refusal. It’s important to seek advice if your organisation receives a flexible working request.
3. Dismissal for leaving or staying away from a dangerous workplace
If an employee has left/is staying away from the workplace it’s important to clearly establish the reasons for their actions where possible, to ensure the situation is managed safely and appropriately. Whilst in a lot of cases the employee’s reasons are likely to be due to ‘conventional’ workplace issues it’s important to be alert to cases where an employee has left/is staying away from a ‘dangerous workplace’ as the protections employees have in such circumstances are not always well known.
It’s automatically unfair to dismiss an employee because in circumstances of danger, which the employee reasonably believed to be serious and imminent and which the employee could not reasonably have been expected to avert, the employee left (or proposed to leave) or (while the danger persisted) refused to return to their workplace or the dangerous part of the workplace. Employees also have protection from being subjected to a detriment in such circumstances.
Cases are starting to trickle through the employment tribunals from the first wave of the pandemic showing that employees are trying to bring claims in these areas. Being alert to such claims can help employers to avoid inadvertently falling foul of the law.
4. Furlough related claims
The furlough scheme remains in place until the end of September and it will be important for employers to continue to comply with employees’ employment law rights and the rules of the scheme as it moves into the next phases. Employers are required to make a 10% contribution to furlough pay in July 2021, increasing to 20% for August and September 2021.
Some areas that employers may wish to be particularly alert to:
- Ensure employees get paid correctly whilst on furlough and that there is an appropriate furlough agreement in place
- Where annual leave is taken during furlough this should be paid at the employee’s usual holiday pay rate and not at a reduced furlough rate
- Employees who are on furlough still have the right to claim ordinary unfair dismissal if they have at least two years’ service and there are some claims that employees can make from day one of their employment such as discrimination and unlawful deduction from wages so it’s important to act appropriately if you are considering taking any action in relation to a furloughed employee, including making redundancies.
The Office for National Statistics estimates that over one million people have reported experiencing long-COVID, it’s still a new illness and there can be a variety of symptoms. If an employee in your organisation is experiencing long-COVID ensuring they are treated appropriately and reasonably reduces the risk of workplace disputes arising. It’s important to bear in mind that it’s possible that in some circumstances long-COVID may be considered a disability under the Equality Act.
If you have an employment law issue in your organisation it’s important to seek advice on the facts of your case before taking action. Please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.