As businesses struggle to deal with the fallout from the pandemic, claims made by employees against their employers in respect of unfair treatment are on the increase.

Latest figures suggest employers are breaching employment law rules

According to the Ministry of Justice employment tribunal claims rose by 18 per cent. for the period April to June 2020. Similarly, Citizens Advice Exeter have reported a 19.5 per cent increase in employment-related enquiries.

Employers trying to cope with financial and logistical difficulties have on occasion made decisions that breach employee rights at work. In particular, Citizens Advice Exeter has spoken to employees who were expected to return to work despite childcare difficulties, as well as those who were shielding or who had household members who were shielding, but who were asked to return to work.

The pressure on employers has also meant that decisions are pushed through too quickly, for example, redundancies without the required consultation and selection processes.

The main areas where difficulties are being seen are as follows:

Unfair dismissal

If an employee’s employment is ended unfairly, then they have a right to bring a claim for unfair dismissal. Fair reasons for dismissal include genuine redundancy, however there is a strict procedure in redundancy law that must be followed.

Some reasons for dismissal are automatically unfair, such as being dismissed because you are pregnant or on maternity leave, because you have taken action or intend to take action over a health and safety issue, because you are a whistleblower, because you need to take family leave or because you wish to enforce a statutory legal right.

Reasons for dismissal during the pandemic that could potentially be unfair include being dismissed for asking your employer to put adequate health and safety measures in place, for asking them to consider flexible working options or for ‘blowing the whistle’ over fraudulent furlough claims.

Discrimination

It is unlawful to discriminate against someone on the grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, gender or sexual orientation.

Requiring an older worker to stay at home during the pandemic simply because of their age is an example of direct discrimination, even if the employer’s intentions are well-meant.

Discrimination can also be indirect, for example, an employer may offer promotion or other benefits but only to full-time workers. If most of the part-time workers are women, this could indirectly discriminate against them.

Breach of contract

Both employer and employee are bound to abide by the terms of the employment contract. Where these are breached, either side can bring a claim if they have suffered loss as a result.

A standard employment contract will include details of pay, working hours, notice periods and details of what is expected from each party.

A number of terms are implied into all employment contracts, without being specifically set out. These include requirements such as acting fairly and a duty of trust and confidence.

An employer could breach the terms of an employment contract by dismissing an employee without observing the notice terms as set out in the contract or by breaching a fundamental term of the contract, in which case an employee could bring a claim for their notice pay or for constructive dismissal.

Workplace safety

Employers have a duty to keep workers reasonably safe and to comply with the relevant health and safety legislation. This includes new rules brought in to minimise the spread of Covid-19. The government’s guidelines must be followed and it is an offence for an employer to allow or require staff to come to work when they should be self-isolating, although they can be required to work from home.

Employees should not be treated detrimentally if they raise health and safety concerns. Any matters raised should be listened to and addressed in accordance with the employer’s procedures and employment legislation.

Mental health

The pandemic and surrounding disruption have had a negative effect on many people’s mental health. Difficulties have arisen both from working at home for long periods and from being required to work during the Covid-19 outbreak.

Where employees feel that they have been discriminated against because of mental health problems, they may have grounds for a claim against their employer. If employee problems could be classed as a disability, then the employer is expected to make reasonable adjustments to help the employee carry out their job.

For more information about mental health in the workplace, see our article Mental health discrimination at work.

How can employers protect themselves?

Good communication will go a long way to helping employees air any problems they may have. If employees raise issues, then employers need to follow the correct procedure in dealing with them, as set out in employment contracts, employee handbooks and legislation.

Having open, honest discussions will help. Everyone understands that this is a difficult time and that employers are under unprecedented pressure. If lines of communication remain open, there will be a better chance for employers and employees to work through problems than if it becomes difficult to have conversations.

Government coronavirus guidelines need to be followed carefully and adjustments made to normal working practices as necessary to comply with new health and safety guidance.

Where mental health is an issue, employers need to listen to what employees are saying and look at potential ways in which help can be offered. Conversations should be in private, with the assurance of confidentiality, and if the solution is not immediately obvious, employers should seek professional advice on dealing with the situation.

Prevention is preferable, so employers should take a look at employees’ working environment and see whether anything can be done to reduce stress and anxiety. This could be by way of regular meetings with those working at home or more flexibility for those attending work and by asking employees questions about their wellbeing and whether they need anything to change.

For more information on supporting employee mental health in the workplace, see the Acas website.

If you need to make employees redundant, seek advice from employment law solicitors about the best way to go about this to avoid legal claims. In the event that you have employees who are willing to take voluntary redundancy, seek settlement agreement advice to ensure that your rights are adequately protected.

As businesses pull out all the stops to stay afloat, it is easy to inadvertently push employees to carry out work that exceeds what is legally acceptable. To avoid claims in the future however, it is important to consider whether employment legislation is being breached, either by asking employees to carry out extra work or work in breach of health and safety rules or by moving too quickly to make employees redundant and paving the way to claims for unfair dismissal.

Contact Springhouse Employment Solicitors

If you believe you have been treated unfairly by your employer or you are an employer needing employment law advice on how to avoid or defend a claim against you, our experienced employment solicitors will be happy to help. Contact us today by ringing 0800 048 5888 or fill in our contact form. Our team is ready to give you clear, accurate advice