Shifting sands
As the furlough scheme ends and employers grapple with novel working arrangements, Dan Bindman speaks to CILEX employment lawyers on the fallout from the pandemic, the impact of Brexit and delays in the tribunal system
Employment law is a hugely varied area of practice, with the work undertaken by CILEX Lawyers specialising in the field reflecting wider changes in society. At present the ground is shifting from dealing with Covid to post-pandemic workplaces and redundancies leading to employment claims, against a backdrop of enormous delays in the tribunal system.
Employment lawyers will be presented with a mixture of both the familiar and the new: managing cuts to workforces but also advising on novel working arrangements, such as hybrid and home-working. Post pandemic, they can expect to deal with new medical complaints arising from Long Covid and become increasingly used to technology in judicial hearings as the norm rather than the exception.
The future is likely to provide an interesting range of legal work – both non-contentious and contentious – where employers and employees need legal advice to help them navigate difficult circumstances.
Brexit is also coming into play, as well as altering attitudes to discrimination, which employees are increasingly reluctant to put up with. There is also an increased interest in using mediation, especially judicial mediation, instead of tribunals to resolve disputes. A consequence of the tribunal hearing delays is a greater willingness among parties to settle.
The end of furlough
The government’s furlough scheme, in which companies are paid a subsidy aimed at maintaining their workforces, ended in September. This may or may not lead to businesses restructuring to cope with the extra costs, especially when access to European markets is constrained following Brexit.
“As night follows day” redundancies will lead to an increase in employment tribunal claims
Matthew Huggett, CILEX Fellow and partner at Carbon Law Partners, describes furlough as “an extraordinary scheme in extraordinary circumstances” which had done a good job of protecting jobs and employers. But its end was bound to bring some redundancies, especially in the hospitality and travel sectors. He had also personally seen evidence of associated sectors being affected, such as aerospace engineering.
“As night follows day” redundancies will lead to an increase in employment tribunal claims, he predicts confidently, adding: “That is always the case when the economy is depressed… particularly where the sector you work in is not doing so well and if you are made redundant, the opportunity for you to simply go and get another job may be very difficult to do.”
Because there are no longer fees for bringing tribunal claims, there is effectively nothing to lose for people out of work to seek redress.
Hybrid working
Trula Brunsdon, a former CILEX Fellow, now a solicitor, specialising in employment for Sherbornes Solicitors in Cheltenham, says that although furlough-related redundancies have not yet become a particular issue for her employer clients, they are nevertheless preoccupied with issues around the return to work following pandemic-related lockdowns.
“The biggest thing is the return to work and what that encompasses,” she says. Some people had already gone back to the workplace and others who were thinking about returning were fearful about colleagues testing positive without them knowing about it. Some employees were hoping to continue working from home much as they had become used to,” she says.
“I’ve had quite a few employers pondering how to deal with flexible working requests, ensuring they are dealt with fairly – and where there are employees with disabilities, making sure they’re not discriminatory.”
Some employers have been proactively developing hybrid or flexible working policies to try and pre-empt employee requests. These range from those saying they will allow a fixed number of days working from home, to at least one that says as long as teams kept customers happy and make sure the work is done, they can decide the policies themselves.
Ms Brunsdon says she has also dealt with a number of enquiries about Covid vaccinations, with some employers asking whether they can require staff to be vaccinated, or at least factor in a refusal to be vaccinated to their business plans.
Another CILEX Fellow and employment specialist, Matthew Grant, who works at South Coast law firm Gaby Hardwicke, agrees that redundancies from the end of furlough have not led to requests for advice from employers. He expresses surprise, saying: “It’s almost as if businesses are expecting to bring people back or indeed that most people are back already.”
Meanwhile, he says, many employers have enquired about whether they can make employees work from home in the longer term because they realise that the situation is “quite advantageous” – it has worked well during lockdown and is a chance to reduce office space.
While all employers share the priority of delivering good service to clients, some want staff to come into work for perhaps one day a week. This is less a legal issue than one of practical organisation, Mr Grant feels.
He has also had queries from employers about safety at work. Many of his clients in the care sector are keen to have their staff vaccinated early on. Most are not meeting much resistance from staff, he says, because they understand the need for vaccines and testing.
A tribunal system in trouble
One thing employment specialist CILEX Lawyers tend to agree on is that the employment tribunal system is in dire trouble, with delays exceeding a year for hearings to be scheduled. In November 2020, the backlog of employment tribunal cases was 42,895, according to the government.
Mr Huggett reports that tribunal delays vary from region to region. In one case, he had a preliminary hearing in July for someone who was dismissed last October – unrelated to Covid. The listing for the main hearing is not scheduled in London until a distant November 2022.
Ms Brunsdon is advising clients that a multi-day case can take “years before we get a hearing”. However, while delays are “frustrating”, she adds: “I would much prefer a case to be listed, albeit months and months later, but know that we’ve got a good chance of going ahead, rather than not being listed at all.”
Mr Grant says: “Tribunal delays have been a massive problem for us… The longest delay in any of the cases I’ve received is 18 months to get from a preliminary hearing to a multi-day trial. We’ve always been used to some level of delay, but this is becoming unacceptable.”
To avoid the problem of having to gather together employees months after events have taken place, when memories have faded, early witness statements are taken “while recollections are still fresh”, he explains.
There are a few alternatives to seeking resolution to an employment claim. The usual ADR route is via the Advisory, Conciliation and Arbitration Service (ACAS), which, because it has taken on more work as a result of the tribunal delays, is overworked.
An option more closely resembling the tribunal route is a judicial mediation process, which is in-person and brings parties together and makes a focused effort to resolve a case on a particular day.
Mr Huggett says: “ACAS is fairly hands-off whereas this brings the parties together, which means there is some willingness on both sides to actually attempt to settle the case.
“My experience of judicial mediation is that it’s very good because you get a judge who does it and so is obviously legally qualified and very experienced, who can then talk to the parties in a very straightforward and pragmatic way.”
However, the “downside” with a judicial mediation is that, by relying on judges it still “taps into the same resource”, namely the justice system, which is already stretched. The problem, he says, is that judges do not make judicial mediation available for every case because it means setting aside a day, which may or may not work out, compared with a hearing that might take two or three days but definitely results in a resolution.
“This causes an inconsistency in the system and because we are relying on judges we are just shifting the same limited resource problem to another position.”
Ms Brunsdon agrees that judicial mediation can help reduce tribunal delays, but adds: “Not all parties in all cases are going to want judicial mediation, nor will it be necessarily suitable for mediation.
“The fact remains that the majority of cases do still settle before hearing and I think ACAS do a fantastic job in getting cases settled.”
Changing attitudes
One medical problem expected to find its way into the employment tribunal is Long Covid – prolonged illness caused by the virus, often serious, thus impairing the ability of the victim to work.
Mr Huggett says he has already worked on a few cases where people have been either in a long-term absence due to Long Covid or have found it hard to perform their role to the normal standard expected of them.
The tribunal will likely be asked to decide whether or not Long Covid is a disability under the Equality Act 2010
He predicts the tribunal will likely be asked to decide whether or not Long Covid is a disability under the Equality Act 2010. “I wouldn’t expect them to agree with it because there are many other conditions that are not automatically treated as a disability. Also, agreement on what Long Covid actually is, is still up in the air,” he says.
Brexit is also likely to throw up employment issues, he continues, including shortages of labour. He is already hearing from employer clients about the availability of new recruits.
“We’ve all seen the news reports about the shortage of lorry drivers and so on, and once we get into the more niche and skilled sectors, not being able to tap into the European market any more has had a significant impact on the ability of companies to recruit.”
Also likely to lead to a spike in demand for employment law advice is greater equality and diversity awareness. Trula Brunsdon says she had seen a rise in people coming to her with discrimination cases: “I think that as a society, culturally there is less tolerance of discrimination and people are less willing to put up with it.
“There’s more understanding of mental health issues and people are more confident they are likely to be believed by tribunals.”
Virtual hearings
As has been seen right across the country in a number of fields, professionals have had to get to grips with using video technology. The law is no exception: video hearings in courts and tribunals have been employed to take the place of traditional in-person hearings. The employment tribunal uses the secure Cloud Video Platform (CVP).
This has not always gone smoothly. “The problem is the technology is not that great,” says Mr Grant, particularly with many unrepresented claimants, who often have poor connections. Even when connected, hearings are often slow and suffer from “unwanted feedback”, making the process “quite troublesome”.
Another problem is not knowing who else is in the room with the claimant, he reports. “I’ve had a couple of cases where they keep looking above the laptop screen and their facial expression shows they are taking guidance from someone standing behind the camera.”
CILEX is mindful of the growing importance of this sector of law and has created a specialist employment law special reference group (SRG) of experts that it will consult on policy matters. Mr Huggett is a member of the group, which is yet to have its first meeting.
There are a number of organisations he hopes the group will liaise with, including the Employment Lawyers Association and both regional and national tribunal user-groups.
In recent years, employment has increasingly been seen by law firms as an important practice area for business development, while other fields of law – particularly those that are publicly funded - have become constricted. CILEX Lawyers who specialise in the area say it is attractive for its variety of contentious and non-contentious work.
Mr Grant, who has worked in the field for more than a decade and recently qualified as a CILEX Fellow, “definitely” recommends it as an area to work in.
In particular, he highlights the fact that contentious work is traditionally done by legal representatives, without the input of barristers. This makes it “a more friendly and accessible environment for legal executives to practise in” and one in which CILEX Lawyers can truly showcase their skills.
For more information on CILEX’s employment SRG, or if you wish to join, visit our SRG web page or contact employmentlaw@cilex.org.uk