UK Update: Employment Tribunal Trends: Navigating Tribunals Post-Pandemic

The coronavirus pandemic has undoubtedly affected how employment disputes are resolved in the UK.

At the beginning of the pandemic, the Tribunal system effectively ground to a halt for a short time and few, if any, cases were being heard. However, it didn’t take long for the system to get back up and running and we are seeing some new trends as a result.

1.Virtual hearings here to stay

There is little doubt that virtual hearings are here to stay, in one form or another. Indeed, there is now a ‘virtual region’. That is a region of the Employment Tribunal that is entirely virtual and takes advantage of the flexibility offered by video hearings to enable participants who are geographically dispersed to come together online to hear cases generated from any region.

Virtual hearings have changed the way that parties must prepare for hearings. For example, bundles of documents are compiled electronically and in accordance with certain specifications. There are also now online document centres for parties to upload documents over a certain size.

It is generally accepted that the Tribunal’s use of online hearings has been a success – it certainly allowed justice to be done online when restrictions made in person hearings more difficult. Views differ in relation to whether virtual hearings should be the default hearing type or not and much will depend on the type of case and so on.

If you are involved in a tribunal claim, speak to your representative at an early stage about whether you would prefer an in person or virtual hearing and why. There are pros and cons to both and the type of hearing should now be something high of the early case management agenda in tribunal proceedings for parties and their representatives.

2.Delays

One of the aims of Employment Tribunals is to avoid unnecessary delay, and indeed parties are encouraged to cooperate to achieve this.

It is understood that the average time from receipt of an ET1 to a hearing (which includes a preliminary hearing and not necessarily the final hearing) is 335 days for single claims in the UK. Your experience of delays in the tribunal system is very likely to depend on where your case is being dealt with and the type of claim(s) involved. In our experience, cases are dealt with quicker in Scotland and it will take notably longer for a case to be disposed of in certain regions in England.

Parties should consider the effects of delays on their case. In any event, proactive case management and early preparation is key and parties should consider whether there are any quicker ways of resolving the dispute (if appropriate) e.g. mediation.

3.Types of cases

• Health and safety concernsThere has been a three fold increase in claims flowing from a claimant’s health and safety concerns. There are a number of legal issues and potential claims if an employee is concerned about health and safety. For example, in certain circumstances employees are protected from detriment or dismissal when they voice such concerns. Employees who resign may also claim constructive unfair dismissal due to unsafe workplaces e.g. where covid-19 guidance or policies were not followed.
• These types of claims are likely to continue for the foreseeable future. Employers should consider particular risk areas in their organisation, take proactive steps to reduce the risks and take any health and safety concerns seriously when raised by staff.

• Flexible workingIt has also been reported that tribunal claims related to flexible working requests have increased by over 50%. Tribunal litigation on this issue can be damaging for employers, not only from a financial perspective but a reputational perspective too. For example, a case involving an employee with child care responsibilities whose flexible working request was refused was widely reported in the press last year and resulted in the employer having to pay a substantial sum in compensation.
• Not only can employees bring a claim under the Employment Rights Act 1996 if the employer has not followed the correct process or dealt with the request in a ‘reasonable manner’, but they can also bring other claims where a flexible working request is denied or not dealt with appropriately e.g. discrimination and constructive dismissal. We are likely to see the number of these claims increase as the work from home guidance is relaxed or removed and employers ask employees to return to the workplace.

There are various other workplace issues which arise because of the pandemic and which are likely to result in litigation for employers e.g. ‘no jab no job’ policies, dismissals for refusing to be vaccinated and changes to sick pay policies for unvaccinated staff. There is no substitute for taking advice early in relation to these issues and seeking legal representation as soon as you receive notice of a claim.

What’s next?

The past two years has been a difficult time for employers, managers and HR professionals for a number of reasons. While the difficulties and operational demands caused by the pandemic may be taken into account by the Tribunal when deciding cases, employers remain open to a number of potential legal claims and should ensure that they are not only reactive but proactive in dealing with this.

By Jamie Meechan, Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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