With the furlough scheme apparently on the wind down there have been fewer employment law developments of late. The Government has been concentrating upon Covid-19 and more recently Brexit has come onto the agenda. Courts and Tribunals have been hearing many fewer cases and therefore not making much new law.
Covid-19 has further impacted upon delays in the Employment Tribunal service. Pre-lockdown there was a backlog of single cases of 30,687. By the end of June, it had increased to 36,616. No doubt it is higher than this now. Tribunals stopped hearing cases altogether for a period and have more recently been undertaking hearings using video facilities. To compound this, the increase in redundancy dismissals which has already occurred, and which will no doubt accelerate during the Autumn, is predicted to lead to a further rise in cases, especially as many employees will fail to obtain alternative work quickly. The wait for a final hearing is getting longer and longer. The worst region appears to be the South East. At present cases of 2 or more days duration are being listed for well into 2022!
For those employers contemplating 20 or more redundancies within 90 days or contemplating changes to terms and conditions which could result in dismissal then re-engagement, there is a need to consult with employee representatives, but also to file form HR1. An updated version of this document has been published by the Insolvency Service over the last month or so. Given the continuing chaos in relation to quarantining following holidays abroad, the Department for Business, Energy and Industrial Strategy felt the need to issue advice on the employment rights of those being forced to self-isolate in those circumstances. This pretty much appears to be along the lines that dismissal should be a last resort and that alternative arrangements such as reaching an agreement concerning annual leave or unpaid leave, as well, of course, as looking at working from home, should be explored first. This all seems pretty obvious – it would be a very brave employer to dismiss in such circumstances unless an employee had chosen to go abroad knowing before going that he or she would face quarantine on return and that the work could not be undertaken from home.
There are further warnings from HMRC in relation to fraudulent furlough claims. Anecdotally at least, there does seem to be a prevalence of this. HMRC is apparently investigating what it regards as 27,000 ‘high risk’ claims costing up to £3.5billion out of a current pay-out of £35.4billion. In an increasingly fractious working environment, more of these matters are likely to become the subject of reporting from employees and if the topic is raised before Employment Tribunals, they will be duty bound to report them to HMRC. Employers would be well advised to get their ‘ducks in a row’.
Turning for the first time in a long time to actual case law, there was an interesting recent decision by the Employment Appeal Tribunal in the case of KVL. This related to a school teacher. Pornographic images of children were found on his computer at home. He was invited to a disciplinary hearing, accused of gross misconduct in relation to the pornographic images. He denied that he had downloaded the images to the computer. His school concluded that the evidence that he had downloaded images was not clear. It went on to dismiss given a concern that if it didn’t and there was a later occurrence this would cause major difficulties and would cause serious reputational damage for the school.
The Employment Appeal Tribunal took the view that the dismissal was unfair because this wasn’t what the teacher had been accused of and invited to the disciplinary hearing to address. This is a salutary lesson for those seeking to set up disciplinary hearings. Make sure that the letter of invitation is carefully constructed and deals with all of the grounds upon which a dismissal may be considered. If this had happened here, the likelihood is that the result would have been different. Further, if an employer holds a disciplinary hearing based on particular grounds, but discovers something else during that hearing which it may wish to rely upon, it follows that it would be sensible to adjourn the hearing without a decision, write again to the employee setting out the new concerns and then reconvene the hearing once the employee has had the opportunity to prepare to address these additional concerns.
Nigel Tillott – Head of Employment Law
