What could land employers in court before Christmas?

As businesses adjust to the new normal, Charlotte Geesin looks at the trending employment law hotspots that could land companies in court before the year is out

2021 has almost been as unpredictable as 2020. What we thought we knew last year has changed beyond all recognition. With companies UK-wide bearing the financial brunt of the end of furlough, and bosses adjusting to a new normal that includes hybrid and flexible working arrangements and managing employees with long Covid, being an employer has never been more legally complex than it is right now.

It would have been difficult for anyone to have predicted some of the shifts to the way we work that have taken place in recent months. The entire labour market of workers and bosses alike are continuing to get used to different ways of working and face new operational, financial and personal pressures.

The employment tribunal system is working through a backlog, and furlough has distorted reality for many businesses and their employees. But now, as we’re all forced to work with and embrace the change, we are on the precipice of a potential employment tribunal overload as the new normal creates the perfect storm for employment litigation with employees returning to the workplace with a vengeance – and employers need to be prepared.

Law hotspots employers should be aware of to avoid ending up in tribunal include:

  1. Making redundancy dismissals following furlough

    Up to a million workers have been on furlough for the duration of the coronavirus job retention scheme (CJRS). The CJRS ended on 31 September, but business is yet to return to normal for many sectors, especially those that continue to be hindered by government guidelines and restrictions. 

    Businesses that have returned to normal have done so without the services of furloughed employees, which leads to a question being asked about the need for certain staffing structures.

    If you believe you have a need to make redundancies now furlough has ended, you need to address this carefully. Not only are there strict legal consultation obligations you must meet, but you are also obliged to consider possible alternatives, including reduced hours, lay-off, or reduced pay, before terminating employment.

    Fail to follow proper process or establish a genuine need for redundancies and you run the risk of an employee, with nothing to lose, bringing claims against you including unfair dismissal and unlawful discrimination.

  2. Failing to pay holiday pay to employees who have been on furlough

    Holiday entitlement calculations can be tricky at the best of times, and 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. If you get the calculations wrong, refuse to allow the rollover, or unlawfully force an employee to take holiday, you risk being sued in the tribunal.

  3. Providing an unreasonable response to a flexible working request

    An employee has a right to make a flexible working request subject to meeting certain eligibility requirements, and the law around this has not changed. What has changed is the understanding around home working which we know, for the most part, can and does work.

    Many businesses have implemented a remote or hybrid working policy, but some have not. Instead, they are asking employees 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 to them, including not only the fact that they may have been able to accommodate it during the peak of the pandemic, but also the reasons for the request in the first place.

    What’s more, any flexible working request that is made based on a protected characteristic of an employee or to accommodate needs including caring responsibilities, needs additional consideration.

    If a business fails to properly apply its mind to a flexible working request or refuse to even offer a flexible working trial, it could end up on the wrong side of a tribunal claim.

  4. Dismissing employees with long Covid

    Long Covid is likely to be classed as a disability in some cases. Employees with long Covid will therefore have the right for certain reasonable adjustments to be considered, before any decisions are made about termination of their employment on grounds of health.

    Failing to properly take into account your obligations under the Equality Act 2010 when dealing with employees with long Covid risks both unfair dismissal and unlawful discrimination claims being brought against you.

Charlotte Geesin is head of employment law at Howarths