Director and Head of the Employment Law team Jolyon Berry discusses what 2020 has presented for employment law.
Director and Lockdown 1 seems like a lifetime ago to me; while once inundated with calls and questions about furlough and then the inevitable management of redundancies, since the start of Autumn, its all been about employee litigation.
Perhaps potential litigants are feeling more uncertain about their future and therefore more prepared to bring a claim against their employer, or perhaps employers are being a bit more jumpy, or perhaps both is true, but there is a perfect storm of increased litigation and decreased Tribunal capacity at the moment. Frustratingly, some Tribunal regions are requiring all case preparation to be completed relatively quickly, but listing hearings months into the future, reducing the advantage that a slow process hands to a Respondent during the settlement negotiation stages that almost all cases go through.
In the last 6 months, we have become very familiar with Tribunal hearings being conducted online and lessons have been learnt quickly.
The big takeaway point is that for the cases that do go to trial, more time must be set aside at the closing stages to ensure that the technology, the users’ knowledge of the online platform and the virtual documents are all up to scratch as those miscellaneous tasks that accompany every hearing take so much longer in the virtual world. The problem caused by a poorly copied page of a trial bundle can be easily fixed in the actual world, but in the virtual court room a scanned copy is sent to a central email address to be allocated to the correct Judge and then uploaded into a virtual bundle. One such issue took two days to resolve during one of our five day hearings this year as opposed to the time it would have taken to hand a paper copy to a clerk to pass up to a Judge.
That five day hearing over the summer was a good one. A claim for race, sex and age discrimination brought against five Respondents (two charities and three managers) with Thompson Smith and Puxon acting for all of the Respondents. The Claimant was a litigant in person up to the hearing at which he had an advocate. While we were able to counter all of his evidence throughout the hearing, the Judge made an overt point of considering the subconscious bias of the Respondents before dismissing all of the Claimant’s claims.
The question was framed in the following way; ‘the Claimant says that there were no good grounds for him to be dismissed, therefore he says that his age, sex and/or race must have been the reasons for his dismissal. The Respondents say however that there were good grounds for his dismissal that were nothing to do with those protected characteristics; he was unreliable, poor at planning and was aggressive’. As there were only a couple of examples in the evidence suggesting the Claimant had been aggressive the Judge asked himself if the Respondents had been guilty of attributing ‘aggression’ to a black man as a result of a stereotypical assumption borne from an unconscious bias.
They had not.
Redundancies have unfortunately been part of our staple diet this year. While many clients are very cautious about having to trigger the additional statutory obligations incumbent on them if making 20 or more redundancies within 90 days, in fact on the occasions we helped clients discharge the collective consultation duties the process usually runs smoother than when handling smaller ones. The rules are clear and affected staff have comfort that they are part of a statutory process, which affects their participation in the process. The fact that the penalty imposed for breaching the rules is punitive is ample incentive to make sure that they are done correctly with the result that, while no one likes being made redundant, claims for unfair dismissal and/or discrimination only seem to arise when smaller groups are selected for redundancy.
So, while we remain in the grips of the pandemic which has required our businesses to evolve super-fast, I am optimistic that the workplace of 2021 and beyond will be very different, and better, than the ones in years past. Employers have had to put their trust in their employees, the majority of whom have gone the extra mile in so many ways. We have got better at remote and flexible working while reducing our carbon footprints enormously. We may need to get over a hump of business restructuring in the first couple of quarters which may see a rise in pre pack administrations, business closures and of course more redundancies, but after that, mergers and acquisitions will pick up along with recruitment and the need to get the documents and policies tidied up to reflect the situation on the ground.
Of course my directors and I can help with any of those things, so please do not hesitate to get in touch.
The employment team at TSP works closely with the corporate and commercial teams and delivers sensible advice designed to help your business do what is necessary. If you have any concerns at this difficult time, please contact Jolyon Berry at firstname.lastname@example.org or 07771 542740. Jolyon leads the TSP Employment Law team and is a Legal 500 “Leading Individual”.