Employment Tribunal claims risks in the era of Coronavirus

The Coronavirus job retention scheme (CJRS) is coming to an end on 31 October 2020.

Government support for wage costs is already tapering down and there is no evidence at this time that the government intends to extend the CJRS. Indeed, the government is currently seeking to persuade employers to bring employees back into the workplace.

While Coronavirus has made it very difficult to follow normal employment practices, all employment laws remain in place unless a specific exception has been made by the government.

Many employers might be tempted to take a risk in terms of decision making and processes, possibly hoping that employees or tribunals will be more understanding of the need to make difficult decisions and the difficulty in following usual processes in the current climate.

However, there is no guarantee that tribunals will take such a sympathetic view. It is likely that there will be a huge spike in claims when the CJRS ends and a vast number of employers need to take action to either bring employees back to work with new rules governing their behaviour and conduct in a modified working environment or, unfortunately, turn their attention to cost-cutting and redundancies.

In addition to the heightened risk of unfair dismissal claims arising out of these issues, employers may be at particular risk of claims arising out of the following:

• Employees being paid at the incorrect rates while on furlough
• Redundancy payments being paid at the incorrect rates
• Failure to inform and consult about collective redundancies or TUPE transfers
• Potential disability discrimination claims regarding workplace procedures designed to control Coronavirus
• Potential discrimination claims arising out of redundancy selection exercises.

Employers can reduce the risk of claims by taking early advice if they believe they may need to make changes to their workforce to survive. They should ensure that they continue to follow good practice HR and employment law processes despite Coronavirus. Additionally, they should consider how, if appropriate, such processes and procedures can be adapted or modified to suit the new workplace.

Should you require any assistance with HR and employment law processes, please do contact us and our HR and employment law consultants will be pleased to help.