Employment Law Coffee Break: Covid-19 and easing out of lockdown, latest figures on Employment Tribunal claims and celebrating the successes in neurodiversity and inclusion

Written on 18 Mar 2021

Welcome to our Employment Law Coffee Break in which we highlight the latest developments and issues impacting UK employers.

Covid-19 and easing out of lockdown

With the vaccination roll-out moving to those who are 50 or over, many businesses are starting to prepare more confidently for when current restrictions are relaxed and ultimately removed; the government is still working towards target dates set out in its recent roadmap. Businesses are being encouraged to sign up to the government's rapid testing programme by 31 March. Advice for the extremely clinically vulnerable to shield is also set to end on that date, although individuals in this category are still advised to minimise social contact and work from home where possible.

We are hosting a webinar on 24 March - Covid, one year on - which will include a look at considerations for employers, including the extension of the Coronavirus Job Retention Scheme, what the vaccination roll out means for employers, and legal and practical considerations for re-opening the workplace safely.

Looking ahead to increased freedom to travel internationally, we are now advising a number of clients on their business travel policies. Whilst Covid-19 restrictions have been in place, the right to freedom of movement between the UK and EU has been removed and a new Trade and Co-operation Agreement (TCA) sets out new rules - supplemented by domestic requirements in each jurisdiction - in its place.  It is clear that the situation is now more complex and that the rules which apply to a particular jurisdiction will now need to be considered in light of the specific circumstances and advice taken on the various visa options available where the proposed travel falls out of scope. Our international immigration team looked at this in more detail in our recent webinar.

Employers must now:

  • Understand what international movement of personnel is required for their business and how this sits with the TCA and the associated rules and immigration regime in each applicable jurisdiction. For international businesses looking to bring employees into the UK, our short guide looks at the options available. Our international team can also advise on the appropriate routes for UK employees looking to enter into EU countries for work purposes.
  • Put in place a business travel policy, setting out clearly what activities may be permitted in each applicable jurisdiction under the business travel rules and where further advice from HR/permission from more senior management should be sought.
  • Ensure they understand and factor in Covid-19 restrictions in both the UK and the potential destination (for example, will quarantine rules apply on the return into the UK?). These may mean that travel is not physically possible or is financially unfeasible. Employers should also ensure that clear guidelines are given to managers on dealing with any requests by staff not to travel, perhaps due to medical concerns or family circumstances.

If you would like to discuss putting in place a business travel policy or to understand more on the new business travel rules and immigration options which are now in place, please contact Gavin Jones, who heads up our immigration team, or your usual Osborne Clarke contact.

Employment litigation increasing

An "increase in unemployment and altered working conditions brought on by the effects of the Covid-19 pandemic" are seen as the likely drivers in a steep rise in employment tribunal (ET) claims.  Figures published by the Ministry of Justice for the period October to December 2020 show that compared with the same period in 2019, single claims have increased by 25% and multiple claims by 82%. There is a concern that these figures will rise further once the Coronavirus Job Retention Scheme (CJRS) closes at the end of September.

The ET system was already facing a number of challenges before Covid-19 but its caseload has increased significantly. Recently, it has taken steps to cope with the additional burdens placed on it by Covid-19, with remote hearings now central to how it functions, more judges appointed and new rules since December providing for a fixed six week Acas conciliation period. In October to December 2020, 27% of the cases that were disposed of were Acas conciliated settlements; 42% were withdrawn or dismissed upon withdrawal (which would include claims where a settlement outside of Acas was reached), 9% were struck out and 7% were successful at hearing. Whilst the latest figures demonstrate that only a small percentage of claims progress all the way to hearing, where claims do, employers should be prepared for the long run. Between October and December the mean age of claims at disposal was 48 weeks (12 weeks more than in October to December 2019) whilst the time taken for a claim to get to hearing varies region-by-region, we are seeing claims run for much longer periods of time with listing dates into 2022.

Preventing a claim hitting the ET is key and in the current Covid-19 environment it is important to understand and manage litigation risk. Looking forwards, as lock down eases and the CJRS ends, as well as claims arising from redundancies, we are anticipating seeing more issues arising around flexible working requests and associated discrimination issues, working time issues and claims for alleged detriments and dismissals on health and safety grounds or for making protected disclosures. Pre-empting where risks may arise and putting in place a strategy for dealing with them will be crucial. Where issues do arise, our Employment Tribunal Management team will be happy to guide you through the process and assist you in achieving a resolution acceptable to you. Please do contact our Employment Tribunal Manager, Legal Director Phillip Chivers, for more information.

Neurodiversity Awards: Raising awareness in the workplace

Osborne Clarke are proud to be sponsoring the Inclusion Project of the Year for the Genius Within - Neurodiversity Awards 2021 which celebrate successes in the Neurodiverse community. The standard of entries has been fantastic and demonstrates the excellent work that is taking place to promote accessibility and inclusion for neurominorities.

Neurominorities continue to face many challenges in recruitment and workplace practices. Navigating the disability discrimination protection afforded by the Equality Act 2010 can be complex and this is heightened where it is not always readily apparent what reasonable adjustments to working conditions, practices and other requirements may support a neurodiverse employee. The Covid-19 pandemic has also highlighted those instances where an individual's behaviour, despite on its face appearing distinct, has an underlying connection to their neurodiversity. As businesses seek to reinvigorate themselves in the current economic climate, employers must take steps to harness the different thinking that neurodiverse people can bring to their business and ensure that appropriate support is in place.

We have been running training for HR on the specific legal considerations that neurodiversity gives rise to - please let us know if this is of interest to your organisation.

We are working closely with Genius Within, who provide specialist support to organisations to enable neurominorities to thrive in the workplace.  In case you missed it, please find here our podcast where Nancy Doyle, CEO of Genius Within provides a practical introduction to neurodiversity and the considerations for employers seeking to attract, retain and support neurodiverse talent.