Selection for Furlough: Employers Decision Making Coming Under Question
The concept of furlough in 2020 was unknown territory for many businesses and business leaders found themselves having to make rapid decisions. Guidance surrounding the Coronavirus Job Retention Scheme (CJRS) did not give specific advice on how businesses should go about choosing who to furlough. The tribunals may have a degree of understanding when it comes to the quick decisions’ employers had to make; however, they will also be assessing whether such decisions made were as fair and objective as possible.
There will most certainly have been some employees who were not happy about being placed on furlough and as a result they received a reduction in their pay. Additionally, there were some employees who would have preferred to have been furloughed, but their employer refused their request, this group of employees would likely have comprised of employees who were:
- at high risk of catching COVID-19;
- on sick leave; and/or
- parents or carers.
If normal employment law principles were not applied to any furlough selection process consequently employers may face discrimination claims with the argument being that their furlough decision-making breached the implied term of mutual trust and confidence.
Long Covid/Post-COVID-19 Syndrome
Another important issue over the coming years is “long COVID or post-COVID 19 Syndrome” and how employers will manage employees who are suffering with the long-term effects of coronavirus.
There is no agreed medical definition as yet, however according to the latest NHS advice, how long it takes to recover from coronavirus is different for everybody. Many people feel better in a few days or weeks and most will make a full recovery within 12 weeks. But for some people, symptoms can last longer. The chances of having long-term symptoms does not seem to be linked to how ill you are when you first get coronavirus. People who had mild symptoms at first can still have long-term problems.
Employment tribunals are presented with a long COVID sufferer’s disability discrimination claim, the immediate question will be whether or not the claimant was disabled at the time of the employer’s alleged mistreatment or inaction.
Under the Equality Act 2010, a person is disabled if they have “a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.
An impairment is “long term” if it has lasted 12 months, or is likely to last 12 months or for the rest of that person’s life. The Equality Act also covers conditions that come and go and are “likely to recur”.
This year employment tribunals could face challenging questions surrounding whether an individual’s long COVID symptoms meet the definition of a disability under the Equality Act.
Redundancy: Informing, Consulting and the Selection Process
It is common place to see unfair dismissal and discrimination claims in relation to redundancy in employment tribunals.
Many employers have had to make large-scale redundancies in 2020 and these have continued into 2021 as a result of the coronavirus, these have occurred in some cases with barely any warning. We may therefore see the tribunal service in receipt of many claims as a consequence, with both individual and collective redundancy matters being presented.
There are very prescribed rules surrounding consultation and if there has been a failure to warn and consult individually with an employee about their proposed redundancy this could result in an unfair dismissal claim.
Likewise, collective consultation obligations are triggered when an employer is proposing to make redundant 20 or more employees at a single establishment over a period of 90 days or less, and that failure to comply can result in a protective award of up to 90 days’ pay for each affected employee.
Collective consultation must begin “in good time” and in any event at least 30 days before the first dismissal takes effect (a period that is increased to 45 days where the employer is proposing 100 or more dismissals). Will we therefore see employers citing “special circumstances” as a means of defence if they have failed to comply fully with their collective consultation obligations?
Health and Safety: Refusal to Attend an Unsafe Place of Work
During the past year, a common scenario as a consequence of the pandemic has been employers asking their employees to attend work, but the employee believing that it is not safe for them to do so. In such cases employees may have felt that the employer had not put in place safe working practices e.g. social distancing and enhanced cleaning.
Employees are required to comply with their employer’s reasonable instructions. However, employees are protected against detriment or dismissal where, in “circumstances of danger” that they reasonably believe to be “serious and imminent”, they:
- refuse to return to their workplace (or any part of it);
- leave their workplace (or any part of it); and
- take suitable steps to protect themselves or others from the danger.
However, there must be genuine “circumstances of danger” – there is certainly a danger of contracting the potentially deadly virus. The employee must also “reasonably believe” that the danger is “serious and imminent”.
Employment tribunal claims for detriment or dismissal following a refusal to attend work are likely to focus on whether or not the claimant’s belief in “imminent and serious” danger was reasonable taking into account the safe working practices put in place by the employer.
Flexible Working Requests – Avoid Discriminatory Decisions
The law on the right to request flexible working has not changed. However, employers are expected to be see a change in employees’ expectations surrounding flexible working.
During the past year or so many employees have been working flexibly and they may wish to make this arrangement more permanent. Employers need to be mindful that refusing flexible working requests, or partially agreeing to them, could mean that they find themselves having to justify their decisions later in an employment tribunal.
Some businesses may need to rethink their approach in 2021 especially if they have previously been less reluctant to adopt flexible working practices, whether that be some or all of the time.
Employers will need a strong reason for refusing flexible working requests, or they could find themselves responding to claims of indirect disability, sex or age discrimination.
Handling Discipline, Capability and Grievance Procedures
In the next year or so the way in which employers have been handling disciplinary and grievance procedures is likely to come under scrutiny by employment tribunals.
It is speculated that claims will involve:
- disciplinary action where an employee refuses, or fails to comply with the employer’s COVID-19 rules;
- the handling of any non-COVID-related disciplinary action that is ongoing, or commencing during the pandemic; or
- the handling of other processes, such as grievance and capability procedures.
Claimants may concentrate on delays affected by the pandemic and thus allege it taints the process’s overall fairness, or they may assert that remote meetings and hearings have been conducted unfairly.