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Rise in whistleblower and health and safety claims predicted
18/03/2021
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Ministry of Justice

Employment claims linked to covid-19 whistleblowing and health and safety concerns are expected to feature heavily in the next round of UK employment tribunal statistics, while the latest official data from the government shows an unexpected increase in age discrimination disputes.

Recently released statistics from the Ministry of Justice (MoJ) revealed that October to December 2020 saw 37% more claims accepted than between July and September, and 66% more than between April and June last year. The statistics show a 25% increase in single claims received by tribunals during the last quarter, up to 13,200.

However, by far the biggest rise has been in multiple claim cases, where several claimants join together to bring a claim based on the same set of facts. Around 29,000 such claims were brought at the end of 2020, an 82% rise on the same period in 2019. The last quarter saw 1,000 multiple claim cases, with an average of 27 claims per case, up from 630 multiple cases with an average of 12 claims per case in the same period a year ago.

The fact many employers have been making changes to workers’ terms and conditions, and conducting large-scale redundancy exercises, may account for the steep rise in claims. Indeed, the MoJ expects the rise in tribunal receipts to continue when the government’s furlough scheme ends.

“We might all be working remotely from home and seemingly on our own but, actually, we can see employees are talking to each other and bringing joint clams,” Laura Farnsworth, head of Lewis Silkin’s rockhopper service, told IEL. “So before an employer receives claims, they should think about how they are managing their large-scale redundancies or changes-to-terms programmes. They need to make sure they comply with the relevant steps to reduce their risk of claims being brought in the first place.”

There is no accurate picture of the types of disputes that have increased, due to the high number of claims that have yet to be reviewed and allocated to a claim type and which are currently classified by the tribunal service as “other”. While not currently showing in the official statistics, Farnsworth expects an increase in claims relating to whistleblowing and health and safety concerns arising from covid-19 in the workplace.

“We aren’t seeing too many of these yet, but we expect them to increase in the near future,” she says. “They are more likely to happen as the restrictions start to be lifted and people are expected to come back into the office or workplace and might be concerned about how their employer is managing their health and safety. We’ve seen a few grievances come through already.”

You don’t see many age discrimination claims, so such a sharp increase shows something is going on there

Instead, statistics show that working-time disputes took over from unfair dismissal as the most common claim type. However, a large number of disputes dealt with thus far by Farnsworth relate to the calculation of furlough payments.

“There was quite a lot of confusion, certainly in the early days of the pandemic, as to the calculation of holiday pay, whether that should be included in furlough payments, and at what rate it should be paid,” she explains. “We’ve seen quite a few claims where employees have said their employer has miscalculated their furlough pay, but those are the kind of claims that are being disposed of really quickly, either by the tribunal or being settled where there clearly has been a miscalculation.”

The tribunal statistics do show a significant increase in claims of age discrimination, rising from 208 to 1,166. This jump may suggest two scenarios, according to Farnsworth: either employers are targeting older workers for redundancy or claims are coming from younger workers who appear to be most affected by covid-related furlough and redundancies.

Comparing employment statistics for October to December 2020 with the pre-pandemic quarter of January to March 2020 shows the number of unemployed young people aged 16-24 has risen by 66,000, a 13% increase. Meanwhile, the number of young people in employment has fallen by 284,000, a 7.5% drop.

“It could be employers have been selecting employees with shorter service periods or less experience when they are making redundancy decisions and that impacts younger workers,” says Farnsworth. “You don’t see many age discrimination claims, so such a sharp increase shows something is going on there. It could be that it is older workers that are being selected for redundancy, too, but the fact the ONS data shows this sharp increase in that 16-24 category suggests it is those workers facing discrimination.”

If you have to make a last-minute application it is really hit and miss as to whether you actually get the response in time

Of concern to employers and employees alike has been the increase in the backlog of employment claims. There are more than 51,000 outstanding claims before the tribunals, a 45% rise on pre-covid-19 figures, according to the MoJ statistics. This increase can largely be explained as a result of the general increase in new claims and a pre-existing backlog of claims caused by covid restrictions.

As things stand, the disposal of single claims takes 48 weeks, 12 weeks longer than in the same period before the pandemic, while the disposal of multiple claims has risen from 149 weeks to 229 weeks.

Although The Times newspaper recently suggested “inexperienced” judges were partly to blame for the continuing backlog, Farnsworth was keen to stress that the tribunals are now disposing of the same number of claims as before the pandemic, thanks to the successful implementation of remote hearings for all types of claims. However, she adds that improvements can still be made to benefit all parties.

“As a team, our biggest headache is last-minute postponements or cancellations of hearings, which has a huge knock-on impact for our clients both in terms of time and cost,” says Farnsworth. “The biggest challenge is just getting through to tribunals by telephone or getting letters responded to. If you have to make a last-minute application it is really hit and miss as to whether you actually get the response in time and the phone is very rarely answered by clerks, which is usually the best form of communication if something is urgent. Being able to speak to clerks or just being able to guarantee that applications are going to be responded to would make a huge difference to the speed in which these cases are being dealt with.”

Since the start of the pandemic what would be normally considered straightforward redundancy processes have become far more contentious, according to Farnsworth. In many cases, concern over finding new employment has resulted in more claimants willing to proceed further with claims, raising new grievances, and submitting data subject access requests. This, too, is adding to the backlog of claims before the tribunals.

“It’s definitely taking longer to dispose of claims partly because claimants are less likely to settle,” says Farnsworth. “In previous years a large business might think it’s too much hassle to fight a case and throw some money at a settlement, but, now, that sum of money won’t be enough and employers are finding it difficult to settle for what previously would have been considered a reasonable sum.”

It could be 18 months before you get to a hearing which could be time better spent on business recovery. So, brace yourself and know it is now going to cost more to settle

For those employers expecting disputes soon, Farnsworth has the following advice: “Try to get your evidence together, including witnesses, quickly. If people leave, you’ve lost a whole bunch of useful evidence. Also, think carefully if, commercially, it would be better to settle. It could be 18 months before you get to a hearing which could be time better spent on business recovery. So, brace yourself and know it is now going to cost more to settle.”

Despite the backlog, Farnsworth says that remote hearings, when they do go ahead, are working well in the tribunals. “Understandably, there have been a few technical issues but, generally, hearings seem to be going relatively smoothly. There are some weird, practical issues. For example, documents sent to the tribunal have to be held in quarantine for a period of time, which can cause issues if the judge doesn't get them in time.

“Also, if you are a judge or a barrister cross-examining a witness, you are not just hearing the words that witness says, you are looking at their body language and that can be a little more difficult when all you see is their face on a screen. But, generally speaking, it feels as though everyone has got used to the change.

“There was a period when tribunals weren’t able to deal with any cases but, in terms of the current day-to-day processing of claims, disposals are at the same level they were prior to the pandemic. In fact, tribunals are disposing of money claims – working time, holiday pay, and unlawful deductions, etc – relatively swiftly. So, it is definitely not all bad it’s just that, understandably, it has been a really difficult period for them.”