Potential Tribunal Claims Post COVID

The coronavirus pandemic has led to a period of unprecedented adjustment in all manner of employee relations matters.The manner in which employment tribunals are conducted changed dramatically overnight, and they may never return to normal.

However, the way staff are managed during the crisis and into the post-Covid19 world is likely to have a significant impact on how claims are handled and judged.

The rapidly changing picture caused confusion

Much has already been said on how the UK and its government reacted to the escalating crisis as Asia and then Europe grappled with the rapid onset of the pandemic.

And much more will be pored over, speculated on and adapted to in the wake of lockdown measures, social isolating policies and management of the virus in workplaces in the months and years to come.Certainly, by February 2020, tension and confusion were already mounting.

Still, it wasn’t until late March that a government-imposed lockdown was put in place.From the March 26th, guidelines stated that all “non-essential” work should cease if it could not be done from home.

Confusion remained for several weeks over what was deemed to be “essential”.

This was heightened by fears for personal safety, that of loved ones and all manner of practical day to day arrangements such as childcare and disruption to households.Employers and their employees were forced in many instances to implement their own interpretation of lockdown rules as they applied to a vast array of individual circumstances.

Tribunal Claims arising from delays in reacting

It is anticipated that employment tribunal claims will be raised specifically relating to issues immediately prior to lockdown and during its course.

There are likely to be three main areas of concern which will be brought to the employment tribunal:

• Unlawful deduction of wages and financial damages resulting from a period of time an employee was absent from work for a number of reasons. These could include being “AWOL” due to shielding, childcare issues or perhaps a refusal to attend work due to fears around the virus.
• If an employee was dismissed or resigned constructively due to concerns about attending work.
• Discrimination issues - particularly for pregnant women who should potentially have been placed on medical leave if their employer could not adequately protect them from contracting the virus. Pregnant women who were placed on Statutory Sick Pay or made to take unpaid leave could raise a claim for back pay and unfavourable treatment due to their pregnancy.

Furlough, redundancies and lay-offs

The Chancellor only announced the Coronavirus Job Retention scheme on March 20th.

Companies who had already found themselves struggling by this point may well have already laid off staff or made them redundant.The guidance around the so-called furlough scheme was also somewhat ambiguous to start with, so some businesses will have continued with plans for redundancies and lay-offs until the arrangements were made clearer on the 26th March.This gives rise to the potential for claims based on these two factors, in particular relating to:

• A lack of notice to instigate redundancy, lay-off, furlough or recalling. Statutory notice lengths exist for certain matters relating to redundancy and contract notice lengths may also apply. For a lot of companies, their operations simply ceased with little or no notice once the lockdown was imposed. Employees may be eligible to seek damages for a lack of, or decrease in the period, of notice.
• There are strict requirements around minimum consultation periods for firms who dismiss 20 or more staff from a single place of work within 90 days. Staff affected may be able to claim for a failure to adequately consult.
• Companies may have undertaken a selection exercise to identify staff for any of these instances. Those staff who were selected, or not selected, for any of the above may be able to claim discrimination to a Protected Characteristic under the equalities legislation. However, those subject to factors such as old age, maternity leave or pregnancy who were advised to shield and subject to redundancy, lay-off, furlough or recall are unlikely to be able to claim discrimination.

Claims relating to health and safety compliance

It may be that employees will be able to make a claim if they can demonstrate that their employer did not uphold Covid-19 protection such as social distancing and providing adequate disinfectant or Personal Protective Equipment (PPE). Claims are likely to be of a nominal value though.It is also possible that there could be claims from staff who were infected with Covid-19 due to the nature of their work (for example health and social care workers) and can demonstrate that they have suffered lasting damage.

At the end of the scale, claims could be brought on behalf of employees who died from the virus.With the probable increase in claims going through the employment tribunal system, the usual three-month deadline for resolution is likely to be reviewed as the numbers rise. 

Of course, this could deter claimants from pursuing their claims. But, one thing is certain - the impact of coronavirus on employee relations matters and claims is certain to last for some time to come.