At B3sixty we have been keeping an eye on the kind of employment disputes arising during, or likely to emerge as a result of the Covid Pandemic. In this round up we pick out seven areas:
Selection for furlough:
The Coronavirus Job Retention Scheme guidance has been light on detail about how employers should go about choosing who to furlough, so there will be employees who are aggrieved at being placed on furlough, particularly where this had been accompanied by a pay cut. Equally, there will be a significant group of employees who would have actually preferred to have been furloughed, but their employer has turned down their request. This latter group could include parents or carers who are struggling to balance working from home and caring responsibilities; employees on sick leave, particularly if they could receive more pay by being placed on furlough; and employees at higher risk should they catch coronavirus, including “clinically extremely vulnerable” employees and pregnant employees. Employers may therefore face discrimination claims and arguments that their furlough decision-making has breached the implied term of mutual trust and confidence.
Redundancy consultation and selection:
Unfair dismissal and discrimination claims in relation to redundancy have long since been reasons for disputes. With many employers now making large-scale redundancies – with more to come at the end of furlough – the need to stick closely to the Acas guidance on redundancy will be more important than ever. Particular areas of risk are around individual and collective redundancy consultation (in the latter case also the associated timeframes); selection “pools” and redundancy compensation.
Health and Safety:
For many workers unable to work at home, there have been issues about the safety of the workplace (for example in relation to social distancing and enhanced cleaning). Whilst employees are required to follow their employer’s reasonable instructions, they are protected against detriment or dismissal where, in “circumstances of danger” which they reasonably believe to be “serious and imminent”, they leave their workplace or refuse to return to it to protect themselves or others from the danger. Disputes are therefore likely around what is “imminent and serious” danger in relation to the working practices the employer has put in place.
Flexible working requests:
Employees’ expectations about flexible working are definitely shifting. Some employees who have been working flexibly for a sustained period during the pandemic may wish to make this arrangement permanent. The employee may be able to show that they have continued to perform to the required level, or even exceeded expectations, with these changes. This means that employers that have previously been reluctant to agree to significant changes to working arrangements, such as allowing home working some or all of the time, may need to rethink their approach or face indirect disability, sex or age discrimination claims.
The number of disability discrimination claims relating to mental health is likely to increase, testing whether employers have done enough to help employees experiencing mental ill health during the pandemic; and what support they gave in stressful working environments (such as the NHS) or where employees were left isolated and facing an uncertain future (for example those on long-term furlough).
Raising concerns about how an employer is handling workplace issues during the coronavirus pandemic counts as a “disclosure” with the employee protected if they have a reasonable belief that they are doing so “in the public interest”. Someone dismissed or subjected to a detriment for raising genuine concerns about their employer’s working practices could bring a whistleblowing claim.
Handling discipline, capability and grievance:
How employers handle disciplinary, capability and grievance procedures is under scrutiny, with disputes arising as a result of delays caused by the pandemic, remote meetings and hearings being conducted unfairly.