Covid-related tribunal claims are on the rise – here’s how to avoid them

With the number of cases up 27 per cent on last year, People Management asked employment law experts how firms can keep themselves out of the virtual courtroom

The coronavirus pandemic is giving rise to an increased number of employment claims 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 by law firm GQ Littler 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.

GQ Littler has put this spike in claims 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,” explains Philip Cameron, a partner at the firm. 

“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,” he says.

This has been echoed by Jonna Mundy, CEO of You HR. The volume of tribunal claims was “an inevitable aftermath from the first catastrophic Covid hit last year”, she says, with the full impact yet to be felt. 

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“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, something GQ Littler says is exacerbating problems for employers and employees who face long periods of damaging uncertainty ahead of hearings.

“For both employers and employees these long waits before tribunals can be demoralising,” says Cameron. “For management they are a huge distraction and for employees the lengthy wait period can be very stressful, and they will have no source of income.”

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. “In our experience, even difficult and complex investigations can take place remotely,” says Kathleen Heycock, partner at Farrer & Co.

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”, Heycock warns.

But what can people professionals do to try and keep themselves out of tribunals altogether during this uncertain time? Jo Caine, managing director of Cathedral Appointments, advises employers to engage with HR and legal specialists, instead of trying to grapple with the complexities of the legal system themselves. This will not only save time and money, but could avoid any “devastating mistakes” resulting in damaging consequences for an organisation, she says.

“In this day and age, word spreads fast,” Caine tells People Management. “If your company treats employees unfairly or in an inappropriate manner, especially during a time of crisis such as this, there will be consequences. Employees will talk, bad reviews will be made on platforms such as Glassdoor, and your business will suffer in the long term.”

Caine also highlights that employee engagement, including transparency over business performance, is one of the best ways to protect a businesses reputation as an employer. “Most employees will appreciate openness and honesty rather than sugar-coated lies,” she says.

This also applies to employment processes, says Heycock. “If employees understand what is going to happen and why, and if they feel they have been dealt with fairly, companies stand a much better chance of avoiding claims,” she explains.

Employers also need to be aware of what employers are experiencing, she adds. “Where are the stress points, the difficult working patterns, personal lives, clients and working relationships and how can you address any issues before it becomes irretrievable?” she says. “This is an ongoing process that needs time, thought, dedication, resources and – most importantly – leadership.” 

But businesses also need to recognise claims are always inevitable no matter how by-the-book an employer is. “Perfection is a tough goal, even in normal circumstances,” says Heycock. “No matter how well any process is run, it is not possible to eliminate all claims for disgruntled or distressed employees. And there are far more of those during these difficult times.

“It is inevitable that claims increase when employees can’t simply move on to a new job and a decent salary. Sadly, there are just more people who feel litigation is worth it, because they don’t have another option.”