Failure of employers to deal with employment issues during added pandemic strain creating hidden floodgate of claims

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23 October, 2020

Emma Swan
Partner and Head of Commercial Employment

Given the strain currently on employers dealing with the vast array of challenges created by the ongoing pandemic, it is all too easy to neglect dealing with employment issues that would previously have been high on the priority list. In a world dominated by furlough, shielding, risk assessments, health and safety, and Covid-Secure measures, concern about sickness, long term absence, performance management, grievance and disciplinary can take a back seat. Whilst it may seem in an employer's best interest to focus on Covid related issues, although it is obviously imperative that compliance in that area is ensured, it can be counter-intuitive and damaging to employers to side-line employment issues.

The problems created by benching such issues are multifaceted and largely depend on the individual circumstances of the case. However, there are recurring themes. Taking performance management and capability as an example. If an employer fails to address performance issues in a timely manner in accordance with the organisation's policy, it becomes harder for an employer to substantiate a genuine concern. Should it be raised later down the line when the performance issues have gone on for some time, the employee may feel aggrieved wondering why the issue was not raised sooner and perhaps use the delay as grounds to argue that the issue was manufactured by the employer if it ultimately results in dismissal. They could also argue that they were not supported or provided with training to improve performance, shifting blame partly back onto the employer. Consequently, the potential for allegations that they were left to struggle in their role increases, potentially creating work related stress, sickness or mental health problems for example. Essentially, by failing to act, the potential for an employee to have avenues of redress against an employer at a later date is widely expanded. From an operational point of view, the employer is allowing their organisation to continue to run with underperforming employees and this will ultimately have an impact on the success of the organisation. Performance Management and Capability procedures can run for a relatively long period of time, even when dealt with in a timely manner. Delay just extends the period of time the organisation is operating with underperforming staff which ultimately will have an impact on the strength of the organisation as a whole and its ability to reach its goals.

Long term absence and sickness is a particularly difficult area to address if matters are complicated by the pandemic. Phasing return to work can be affected if the illness places the employee at higher risk due to coronavirus, or perhaps the stress and isolation caused by the pandemic has had an impact on those already suffering with mental health difficulties. However, leaving employees absent from the workplace is costly for employers and leaves remaining staff dealing with increased workloads, which in turn can result in work related stress claims for other employees. Organisations are already under considerable operational and financial strain. Allowing employees to be away from the workplace for extended periods of time does not deal with the problem, it merely extends the period of disruption for the employer. It is vital to ensure that policies and procedures continue to be followed, and timeframes maintained. Employees must continue to be supported, and required contact maintained. Always keep in mind the potential for the reason for the absence to be classified as a disability under the Equality Act 2010. Any failure of the employer to offer the required level or support, and reasonable adjustments on returning to work could amount to disability discrimination.

Disciplinary and grievance issues are matters employers should not be deferring to a later date. It is essential that grievances raised by employees are conducted in line with timings in organisation policies and the issues raised dealt with in a robust fashion. It is essential that allegations of bullying or harassment for example are dealt with promptly, as if they are valid and continue unabated due to inaction and delay by the employer they can give rise to claims of discrimination, bullying or harassment and even constructive dismissal. Often, matters raised in grievances do not get better over time if left unresolved. By nature they escalate, becoming more complex and more damaging to employers. Disciplinary issues should also be dealt with promptly in line with policies and procedures. As all employers will know, when it comes to disciplinary matters procedure is everything. Integrity of process can often be more important in protecting an employer's position than the decision itself. Delays open up employers to criticism, undermine the validity of the claim, and can escalate giving rise to associated claims from other employees.

Many employers are also acutely aware of the need to ensure that the mental health of employees is protected as far as possible at this difficult time. Isolated home environments, inability to spend time with friends and family, bereavements, and perhaps increased stress and worry about finances or the virus itself have caused a downturn in the mental health of many individuals. This in turn can have an impact on employees, perhaps in respect of performance, or absence from work. It is advisable that employers are conscious of taking all action they can to promote well being and have mechanisms in place to identify employees that may be showing signs. Early intervention can make a big difference, not only for the wellbeing of staff, but for the organisation as a whole ensuring that matters do not escalate.

Finally, employment lawyers anticipate an influx of Tribunal claims due to the pandemic. Claims placed on hold as a result of lockdown are starting to find their way through the Tribunal system, and we anticipate a considerable number of claims relating to furlough payment disputes, unfair dismissal relating to redundancies, discrimination claims relating to selection for furlough or redundancy, and claims relating to the health and safety of employees returning to work and the associated potential for exposure to the virus. The Tribunal system is already under considerable pressure, with hearings currently being listed as far ahead as 2022. A floodgate of claims will only exacerbate pressure, delaying cases for considerable lengths of time. As such we advise employers to press ahead with any outstanding employment issues they have as a matter of urgency to prevent matters getting caught up in the Tribunal system. Delay unfortunately translates to increased cost.

In summary, whilst organisations are under unprecedented operational and financial stress, it is imperative that employment issues are dealt with in a robust and timely matter. Failure to act can lead to escalation and complication of matters, provide the employee with more opportunities to undermine an employer's position, and ultimately increase the cost exposure of employers. Our specialist Employment and HR lawyers at Forbes have considerable experience in dealing with all manner of employment disputes.

For more information contact Emma Swan in our Employment & HR department via email or phone on 01254 222354. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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