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Employment News and Announcements 2021

Employment Related Articles, 2021 Archive

Browse our 2021 news and announcements associated with work and employment law below. Previous events may still be relevant to your current employment situation or personal circumstances.

Articles written by Stephen Pinder, Employment Law solicitor and Karen Ogden, paralegal and legal secretary.


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In December I wrote about the prospect of a requirement of having the vaccine as a condition of employment. I identified the legal issues which might arise.

In the last 24 hours the owner of Pimlico Plumbers has announced a plan to require workers to have the jab as a condition of employment. This would be mandatory for new starters, and for the current workforce this might include the need to vary contracts of employment, although no one is identified currently as being liable to be dismissed. The owner Charlie Mullins has offered to pay for the vaccines and expects staff to jump at the opportunity.

Pimilco Plumbers have a history of using the law to impact upon employment rights, taking claims through to the Supreme Court on the issue of worker status, and Mr Mullins has promised if necessary to go to the Supreme Court again on this point, not believing that his no jab no job policy is controversial.

I have already identified the potential pitfalls for an employer if this policy was implemented across the board, including the potential for discrimination on a case by case basis. Of course, if ultimately any employees are dismissed at any business over this issue, we might see a wave of unfair dismissal claims. In the Pimlico case it must be noted that many of the staff are not employees, and “workers” as defined might enjoy some employment rights, but not the right to complain about unfair dismissal before a Tribunal.

As for the real world, we are surrounded by media and political pressure to embrace the vaccine is the answer to our virus-related problems. In workplaces such pressure might come from employers and even co-workers, and if vaccines become necessary for travel, accessing entertainment, entering bars and the like, those deciding not to engage could easily and quickly be identified as being unreasonable and outsiders. We must all be vigilant and ensure that what seems like the right thing to do is not used to harass or punish those who may have their own justifiable reasons to be cautious.

Only this morning Business Secretary Kwasi Kwarteng has been required to distance himself from a Financial Times front page report about Government plans to reduce employment protections derived from the EU. The “48 hour” issue has been raised, a common area raised by Conservative politicians, together with other rights derived from the Working Time Regulations.

Back in 1997 The Working Time Directive was subject to implementation in UK law, the core legislation providing the legal right to minimum annual paid leave, breaks between shifts and working weeks, the right to object to working more than 48 hours each week on average, and more. The new Labour Government implemented the Directive in full and then went further by extending the right to paid leave from 4 to 5.6 weeks. I have never quite understood the objection to a right to paid holiday. It is hardly an area to dispute that by working for nearly 47 weeks each year you might need a small number of weeks off to recharge the batteries. Those objecting fail to understand the benefits in terms of productivity by having holiday, and the Directive was passed as a health and safety measure to overcome the Tory Government objection to rights derived from the Social Chapter, focussing upon the need for rest from lengthy work periods.

The plan to attack rights derived from EU law is not a surprise, and in my view will have arisen by reference to the right in question, and a philosophical objection to having to retain something with an EU origin. Think about some of the more recent equality principles derived from the EU, and long standing protections such as the TUPE Regulations, and the collective right to be consulted about redundancies. These are basic concepts in place to create balance and fairness in the workplace.

What of the 48 hour working week. I could spend time going through the flexibility in applying the limit across work sectors, the opportunity to vary the limit by collective agreement, and the averaging concepts to account for workplace demand. I could explain about the health and safety issues behind the limit, and the fact that many workers are perfectly happy to sign an opt out to exceed the limit, including to earn overtime. It is rarely raised with me as a problem in the workplace and my suspicion here is that it is a nice headline target for ministers looking to shift debate away from their COVID-19 failures and the growing awareness that that their Brexit policy and deal will lead to increasing difficulties and losses for their own business constituency. We must work hard to ensure that the rights of workers are not sacrificed as part of this vendetta against everything with an EU label.

During the pandemic it has not been as easy to define your workplace. What seemed to be so simple has evolved with many office-based workers being instructed to work from home, rather than from an office. This has continued and even when the tier system was introduced there seemed little enthusiasm amongst employers and workers to reverse that trend.

Only this week there has been publicity about some workers being put under pressure to return to work, and in the legal profession there has been concern about the court users, and whether courts are a safe working environment. Today in the Law Society Gazette a heading might surprise some: -

“Lawyers and unions threaten “legal and industrial response” over court safety”.

In a similar sign of the times the next headline is: -

“Solicitors forced into the office tell charity they feared for their jobs”.

No doubt those investing in commercial property fear the likely reduced demand for city centre office space, and the inevitable reduction in rent as supply begins to far outstrip demand. Only this morning I spoke to a client who has worked from home since March for a national retail organisation in an office role. He told me of his delight at saving nearly 3 hours each day on a train commute and several thousand pounds by not travelling by train.

There are in all these points some mixed messages and different approaches for employers and workers. Government guidance is straight forward in directing employers and workers to work from home if that is possible. In my recent experience the virtual court hearings I have dealt with have operated in a reasonable manner and if there are doubts over court or any office safety those involved should exercise caution, especially as the light might just be at the end of the tunnel, albeit I expect a long tunnel.

There is no doubt that there is pressure from some employers to try to return a workforce to a more controlled office environment. In view of the risks arising it is unfortunate that some are fearing that their caution might lead to job losses, and employers should be careful to avoid breaching contracts of employment, from discriminating for example on grounds of disability, and in subjecting whistle blowers to a detriment. Possible personal injury issues arising from an unsafe working environment are another issue altogether, noting what might be the view of insurers.

As with the jab for jobs issue, the concept of a workplace will be an ongoing and important issue. As ever those impacted by this issue should obtain legal advice if at all necessary.

There has been a lot of analysis of the pressures of homeworking, including issues relating to health and safety, use of equipment, and the fact that employees are in effect funding their own workplaces. A more subtle issue in my view relates to the method of homeworking and how individuals are being supervised.

There are many consequences of homeworking for both sides of the employment relationship, including the absence of important day to day contact, not arsing only in front of a remote screen. Relationships are built in other less formal ways, including those random conversations which occur every day, and through the more ad hoc supervision which can arise spontaneously. As someone who has supervised a department of colleagues with different levels of experience, I saw that the team would develop through the ability to walk into an office to chat about a case, and also the time spent listening to how colleagues might deal with a particular problem issue or the challenging client in a meeting or on the telephone.

The role of a team leader or supervisor can differ according to different industries and pressure can be applied through direct contact or on a virtual basis. When people work together more discussion about work related issues is undertaken face to face. The use of communication by electronic message takes away that contact between colleagues and can allow a greater level of pressure to be applied by way of depersonalisation of the message. A potentially hostile message about team targets might be delivered in a more robust way through a keyboard than face to face in a team meeting.

I have spoken to many friends, colleagues and opponents who are home working. Not everyone is suited to work on the kitchen table in front of a laptop and the feeling of isolation has been a common theme. Further, we all have different stresses on a homeworking scenario, for example a colleague might have a poor IT or internet system, slowing work output or preventing it altogether at times. This might be about not being able to download materials or being unable to communicate on completion of that settlement agreement which has a short deadline. The assumption that everything is fine also ignores pressures arising due to home circumstances (eg childcare) or personal physical or mental health issues. Not everyone is comfortable talking about their problems which can build up as time passes.

I have also encountered evidence through client discussions about management putting workers under further pressure. In a one-to-one video call, there are no other witnesses to what might be said, with express or implied pressure to work in a particular way or at certain times. I have friends who tell me about being criticised by their manager for not being online at home almost continuously, not only law firms! The homeworking dynamic blurs the line between the work and home environment, allowing some employers to believe that their employees should always be on call, not simply during standard work hours. This type of bullying can be subtle or overt.

For many the option of working at home is welcome, saving commuting time and saving on expenses of travel to work. All of that is fine but employers must ensure that those involved in management of staff understand the risks arising and have appropriate training, and support for workers. We might have a home workforce in certain sectors, but it must be on a basis which respects each other and the right to a home life as well as an existence in front of the laptop.

Discrimination unfortunately is something which happens in our society, with many of us being subjected to some form of discrimination, whether it is in school, college, the workplace or in wider society.

There is a particular characteristic which many may not know could lead to an unlawful act of discrimination, this being our hair. A schoolgirl was discriminated against by her school because of her afro hairstyle, which resulted in her being sent home from school on a regular basis. The school stated that this was “against uniform policy”, and that “afro hair” must be of reasonable size and length. The schoolgirl argued that this was an act of unlawful discrimination.

As a consequence of the discrimination towards her, the young schoolgirl pursued a claim which has resulted in an award of compensation following an Equality Act case against her school with the backing of the Equality and Human Rights Commission.

The Equality Act is a law to protect us from discrimination in relation to personal characteristics. A person should not have to endure discrimination, particularly if this is referenced to a natural part of who we are.

Subjecting someone to less favourable treatment on the grounds of their race, age, sex of disability is an act of discrimination. It is against the law to discriminate and the law is in place to protect people against these acts. We each have our own individual characteristics, and they should not be a cause for acts of discrimination, instead they should be embraced and respected. If not, the consequences might be a claim and an award of compensation, together with the consequential impact upon reputation.

Readers will no doubt have seen the articles about the recent dismissal of Callum Woodhouse, a bin collector working in Herefordshire for the local council. The story attracted publicity due to the cool headlines about a Kung fu attack on a snowman built by or for a 3 year old, and also because the story was backed up by a CCTV film of the callous attack.

The background to the story is straightforward. Woodhouse had a poor record and was clearly no angel, and he was portrayed as some type of thug after the swinging right boot destroyed the head of said snowman and no sign of Aled Jones singing anywhere in the vicinity.

On the facts I thought that dismissal was harsh. Surely an apology (allegedly refused to be given by Woodhouse) would have sufficed accompanied by a compensatory Crunchie bar for the child. That common sense approach was overtaken by a breach of trust and confidence, and the bringing of the council into disrepute, meaning that Woodhouse was in the line of fire for his rash act of seasonal violence.

The real legal story for me concerns the rights enjoyed by Woodhouse. Although the council used his services, it appears that he was not employed by the council. Instead the council had engaged a contractor to deliver the bin collection service, and said contractor had recruited workers through an agency. This created no contractual relationship between Woodhouse and the council, and Woodhouse was not an employee. Therefore, when the council told the contractor that Woodhouse was not welcome, and the contractor told the agency, our errant snowman assailant had nowhere to go for a claim.

The case confirms the legal vulnerability of workers such as Woodhouse who are entitled to complain about discrimination issues (eg disability, race etc), but are not entitled to complain about being unfairly dismissed. The most important and regularly engaged legal rights are only enjoyed by those classified as employees. Whether it is gig economy workers or agency workers, there must in my view be a formal review of employment rights to eliminate the false distinction between workers identified as having a different formal status.

For Woodhouse, he worked for the local community through the council, and his job was ended because of a council decision. Our legal system should in my view create a forum for that decision to be subject to review, and until then the case reaffirms a long established principle confirming that Kung fu skills will rarely be of assistance in the workplace.

It has been a difficult few days for some of the most powerful men in their respective positions. They do not appear now to have that same degree of power or authority, reflecting a change of attitude on opposite sides of the globe, and a new reality when it comes to what is said to colleagues in the workplace.

Recently the President of the Tokyo Olympic Organising Committee, a former Prime Minister no less, Yoshiro Mori was subject to criticism for his comments about women who are current or prospective Committee members. He observed that the women understand their place, that they talk too much, that they have difficulty finishing, that speaking time should be restricted, and that they are annoying. Having presented these carefully thought through observations Mr Mori was no doubt advised to apologise for his sexism, which he did grudgingly. However, he saw no reason to resign and proposed instead to press on as he had worked hard on the Olympic project.

Mr Mori has come under further sustained pressure and now appears to be running out of support so that he is thankfully looking at having to step down in the very near future due to public outrage. The events of recent days confirm something about the culture of Japan and what might be acceptable in a personal or professional context, and how that may be changing. My view is that had this conduct occurred in the UK the person involved might have lasted about an hour, as we have seen from time to time with UK organisations, such as the FA. The interesting point here is that Mr Mori clearly believed that he had done nothing wrong, even though his behaviour engaged (in a UK context) a protected characteristic of gender.

The Japan example is to that extent a more straightforward case involving reaction to sex discrimination. In the UK we have the Equality Act which would impact upon this conduct and my opinion is that public standards would also lead to a conclusion that a person behaving in this way cannot remain in a position of authority.

Compare the Mori issue to that of KPMG head Bill Michael, no doubt unhappy about spending a second day on the front pages. He has stepped down and is now subject to investigation for telling co-workers on a video call to stop moaning and to stop playing the victim card. I get the impression that Mr Michael probably believed that he was above criticism for what he may have thought was robust management of staff, in effect telling them to grow up! The comments were made in the context of issues arising from work during the pandemic, no doubt with individuals reflecting upon the impact upon them as workers and people. It is highly unlikely that Mr Michael touched upon any protected characteristic (assume for now no disability issue) and instead upset his colleagues due to a crass and insensitive style of management.

1 year on from the start of the pandemic and home working, the KPMG case shows a new trend which can lead to workplace problems and loss of reputation for managers. It is no longer necessary to cause offence by discrimination, instead that offence can arise from a perceived lack of understanding and insensitivity. My guess is that Mr Michael will struggle to understand that he did anything wrong, but he and others in positions of power must learn that their authority and status will only be maintained by behaviour which respects the personal feelings of their staff and does not simply comply their perceived legal obligations.

Recently a Senior Charity Executive was disciplined and suspended for breaching equality and diversity policy for racial comments towards an employee, stating that she hadn’t noticed her in a room because she was the same colour as the chair, “Oh I didn’t see you there! you’re so dark, you just blended in. Your shirt is black, the chair is black, and you’ve just sort of blended in”. The employee in question raised a complaint against her boss. As a result of raising this grievance, senior officers then tried to “get rid”. The employee was unfairly targeted, being victimised, bullied and harassed, ultimately being suspended for alleged bullying. She was cleared by the disciplinary process and allowed to return to work. On her return to work, the Tribunal was told that her role had changed and there was a dispute concerning holidays owed. As a result of the detrimental treatment, the employee went off sick due to stress, which resulted in her resignation.

The employee took the matter to a Tribunal and was awarded damages, with the Tribunal concluding that she had been “victimised”, there was no basis to dismiss her on conduct grounds and no basis to dismiss her on performance grounds. The Senior Executive clearly breached the company’s Equality and Diversity Policy and the Equality Act 2010. There can be few clearer cases of race related harassment.

Unfortunately, discrimination seems to be increasingly common in work,

with workers being subjected to some form of discrimination on different grounds. Race discrimination can be direct or indirect and does not need to be intentional. As in the case above, it can also take the form of harassment and victimisation.

The Equality Act 2010 provides protection against race discrimination and under the Act race is one of the protected characteristics. It is unlawful to discriminate against a person because of their race.

We all need to be aware of the many cultural differences within the workplace and society as a whole, remembering to be respectful of each other’s culture and race. We should all be aware of what is and is not acceptable behaviour, and discriminating against someone because of their race can result in a claim of race discrimination in the Employment Tribunal and an award of compensation.

COVID-19 is having a severe and dramatic effect on people’s lives and society as a whole, with the virus undeniably being around for many years to come. The effects of long COVID have potentially debilitating effects on people’s lives, affecting not only their physical abilities but also their mental state, which in turn is hindering their ability to work or return to work on a full-time basis. However, the Employment Minister, Mims Davies, has stated that the effect of COVID are “non-permanent or reversible, non-progressive and any disability is temporary”. No one is able to say with any amount of certainty that the effects of long COVID are not permanent.

France, Germany, Belgium and Denmark have formally recognised COVID as an occupational disease, and as a result it has recently been urged by patients and MPs that “long COVID” be classed as an occupational disease, with many people suffering long term effects of the virus. There is a long list of common long COVID symptoms like fatigue, loss of taste or smell, respiratory problems, insomnia, cardiovascular, renal, dizziness and problems with memory and concentration (brain fog), depression and anxiety, and joint pains, which can all lead to long term problems, particularly in the workplace. Up to 20% of patients reported symptoms of the disease several months after falling ill. If long COVID is recognised as an occupational disease, there could also be other monetary elements by way of state benefits.

The Equality Act legally protects people from discrimination in the workplace (potentially long-COVID). An employer has a duty under the Act to make reasonable adjustments. If a person has or is suffering a mental or physical impairment which is likely to last or has lasted in excess of 12 months, affecting their normal day to day activities, they will satisfy the definition under the Equality Act. This can also apply to someone who has a recurring long-term condition which has lasted more than 12 months.

Workers and employees would be protected and have a right not to be discriminated against as a result of their long-term symptoms associated with COVID 19, which in turn may have an adverse effect on their livelihood and threatening their financial stability. Comfort should be gained in the knowledge that they should not be discriminated against as a result of any debilitating illness, with their employer making any relevant adjustments to assist an employee or worker in returning to or continuing in their employment.

I have been shocked from time to time when learning about certain cases. Most recently I saw details of a claim pursued against Barts NHS Trust by a nurse Jeyran Panahian-Jand. The nurse had 10 years of experience and identifies herself as white. She became aware of a racial divide on a children`s ward involving an unfair allocation of work. The white nurses identified as the Essex girls had a work allocation more favourable than black colleagues, in terms of the tasks to be performed.

She then informed managers of this race discrimination and other racist behaviour, confirming the Essex/minority split. She was told to keep quiet because of upsetting colleagues, and ultimately, she was subject to disciplinary action, and was precented from working on the ward. She was frozen out within the workplace, and after false allegations were made, she was suspended.

An Employment Tribunal resolved this dispute in favour of the nurse who appears to remain in the employ of the NHS Trust. She was classed as a whistle-blower and was found to have made relevant protected disclosures of information pertaining to racism, impacting upon the public interest. The nurse was awarded over £26000 in compensation, which can include compensation for injury to feelings.

Those familiar with Tribunal whistleblowing cases will understand that it is a technical area of law, and the appearance is of a management and work group actively working together to damage the reputation of Ms Panahian-Jand, and attempting to have her removed for having the courage to raise allegations which did not actually involve personal detriment to her. A person is identified as a whistle-blower because of the information they disclose and to whom it is notified, they do not need to identify themselves as being a whistle-blower, which term is not actually used in the legislation. It can be a useful remedy available for a worker or employee in protecting their position.

The Tribunal expressed a view of the importance of this kind of case. The Employment Judge said, “race discrimination can only be identified and resolved if working people blow the whistle on it, and not necessarily those most affected by it. Here (she) spoke up when she herself was not personally affected by the acts she was complaining about.”

This case confirms the very poor circumstances which exist in some workplaces. Some of the nurses clearly had a very cushy working situation and did not like it when one of their own dared to speak out. The Claimant in this case has shown great courage and I hope the outcome will see her back in work and helping the children, and those responsible for her treatment dealt with accordingly.

I have followed the Uber and other gig economy cases over several years, and no doubt the recent Supreme Court decision is important. The chain of decisions through the different stages of appeal have been consistent, and in almost every respect have favoured the Uber drivers. I recall writing about an earlier decision and coming up with an imaginative title for the article being “They think it’s all Uber, it is now!” Well, not entirely original.

In my view the Supreme Court decision was no surprise. The reasoning from other appellate courts had been clear and persuasive. The conclusion of the appeal process will provide certainty and will no doubt create a body of study for students over coming years. I also welcome the clarity provided for the gig economy workers, with the law adopting a practical and realistic approach to the working relationship.

Of more interest to me is to analyse what was missing from the publicity. Reference was made to the status of being a worker and entitlement to the minimum wage and paid leave under the Working Time Regulations. That’s fine but I wonder if those watching the news understand the difference between workers and employees. I might recognise that workers do enjoy some other employment rights, but surely a key issue is why we live with this essentially false status distinction.

Successive governments have failed to create a level playing field by legislation, ensuring that all of those in a work/employer relationship have the same rights. The Uber drivers might well get paid leave but if they are not employees they will not receive statutory notice pay, redundancy pay, or have the right to claim unfair dismissal. I would have liked to hear that analysis which still means that Uber drivers have in truth very few rights and are vulnerable. I do not see this as being a priority for the current government.

A final point is also an issue away from the gig economy. I have been asked recently to review a contract for a factory worker, who works 5 days each week for a single business, and has a fixed rota. Upon review the contract was in reality an Uber style gig contract, with every effort being made to deny the existence of a contract of employment. It is only an attempt to deny standard right to the worker. I have advised on the importance of examining the substance of the relationship and not to focus on the label. However, not everyone is ready or able to challenge a written contract or to understand that the contract may not be legally effective. Not everyone can fund a claim in a Tribunal to question the validity of the contract, especially if they are not in a union. That really will be a challenge for us all if a wider range of businesses try to adopt the tactics of gig employers.

Philip Rutnam resigned from his role as the senior civil servant in the Home Office raising allegations of bullying against his boss, Secretary of State Priti Patel. He alleged that there had been a vicious and orchestrated briefing campaign against him after trying to get Ms Patel to change her behaviour. There have been wider allegations raised against Ms Patel in relation to how other staff were treated, denied by her, and a report was published some weeks ago.

My interest has involved the specific circumstances involving Mr Rutnam and what happened after he resigned. It has been reported that he pursued an unfair dismissal claim against the Government, and this must have been a constructive dismissal case. The press reports this week referred to the case being settled for £340k and payment of costs, capped at £30k. On the Government side I expect that the costs are likely to be substantial, meaning an outlay to the public purse of over £400k.

An unfair dismissal case only will lead to compensation of the lesser sum of a year of earnings or the statutory maximum, currently £88519, in addition to the equivalent of a statutory redundancy payment. How then might the award be £340k by agreement, with Mr Rutnam earning around £150k each year, no doubt plus pension. Further, the Employment Tribunal does not usually award costs, and my guess is that the deal reflects certain additional factors. On costs, I expect that the Home Office agreed such generous terms simply to kill the case and avoid a hearing in public which would have likely required Ms Patel and officials to give evidence on oath.

As regards the value of the case, again there may be a premium to reflect the value of closing out a deal. I also expect that this is not only an unfair dismissal case, despite the reports. In reporting allegations against Ms Patel during employment I expect that the claim raised allegations satisfying the requirements of a protected disclosure under the Employment Rights Act, namely the whistle blowing provisions. This can involve a claim pursued against an individual such as the Home Secretary and a claim for damages for injury to feelings. Compensation is uncapped, explaining the reference to £340k.

Whistle blowing is a useful addition to an unfair dismissal claim in the right circumstances and can enhance remedy in negotiations and at Tribunal. In this case the public have ended up paying a substantial sum to cover the actions of a senior Minister, and probably double with costs. It is fine denying allegations but it is easy to use someone else’s money to back out of defending your actions in a public forum.

I expect that like many readers, I have found it difficult to avoid hearing about the interview given by Harry and Meghan, resulting in some very serious allegations being raised against the institution of the monarchy and the media. This has included allegations of racism, and an impact upon Meghan’s mental health causing her to contemplate suicide.

There appear to be opposing sides in the fallout from the interview but it is difficult to dismiss threats of suicide, and to dismiss mental health concerns which by necessity involve a personal reaction to events. Over the last year, we have heard many references to the impact of the pandemic upon the mental health of the population, and other members of the Windsor family have spoken out more than once about the importance of understanding mental health issues. It would be unfortunate now if all of those commentators watching Meghan forget about these points, dismissing her evidence as some type of slight on the Queen, almost a conclusion that it cannot be true.

I wanted to think outside of the wider analysis when considering the position of Meghan as a new member of the family and a “working Royal”. Meghan referred to seeking help from the HR function in the Palace about how she was feeling and being told that she could not be helped as she was not an employee.

This is a matter of evidence and my view is that it will be a serious omission if Meghan was turned away in the way described. I very much doubt that she was given a formal contract when commencing her duties for the family, and no doubt a Tribunal would be reluctant to determine that Meghan was employed by the Queen or the UK Government, meaning that her rights were limited, and the legal obligations towards her may have been non existent. Meghan found herself thinking about how her rights might be protected without a union to help her, and without any formal employment status.

If we reflect upon Meghan’s role, she was part of an organisation, undertaking work under supervision from the family hierarchy. The payment through public payments might be described as a form of wage for the public service. I wonder how a Tribunal would react when a person working for an undertaking was denied any assistance when a request was made, effectively denying responsibility for the well-being of the individual, and failing to think about the health and safety of the individual. It is a further example of the vulnerability of a person working without formal status, particularly being an employee.

I recognise that this may be an unlikely analysis but it is not a hopeless point to conclude that Meghan may well have been a worker as defined. We are sometime on from Meghan’s departure from her official duties, so any claim is likely well out of time. That being said if you encounter Meghan and she is interested in this analysis, you might ask her to give me a call.

In a recent announcement it was confirmed that the use of virtual hearings will become a permanent feature of hearings before the Employment Tribunal. The reasoning behind the decision is to assist in clearing the backlog of outstanding cases, which by February stood at over 50000 cases. Use of virtual hearings will ensure that work can continue whilst the covid restrictions remain in place, and changes in the judicial decision making process will ensure best use of resources. A judge could be at home in Kent but could hear a case from the North West Region.

Use of virtual hearings has grown during the pandemic, but it is nothing new in itself. The difference is that in previous years hearings by telephone mainly involved dealing with preliminary hearings for case management rather than full hearings involving witnesses. I have had telephone hearings before the Tribunal for many years, and they tend to be more efficiently dealt with, save time (eg travelling to and from the Tribunal hearing centre), and are less costly. Such telephone hearings could involve some lengthy and detailed discussions but when it came to a hearing with witnesses the parties plus representatives were expected to turn up at a court centre.

In the most recent announcement we have been told of a more efficient decision making process with the introduction of new legal officers to deal with some judicial functions, and the creation of a body of judges able to offer support to Regions, and generally to get on top of the current high workload. For at least two years we should expect more full hearings by video link, not by telephone, with only whistle blowing and discrimination cases mostly heard in person facing a Tribunal panel.

What then of the quality of the judicial experience. I have had misgivings about having witnesses give evidence outside of the classic court room, expecting that there is greater potential for wrong doing, less chance to scrutinise evidence, and less capacity to judge the credibility of witnesses. I dealt with a full hearing last week, involving several witnesses and a substantial bundle of documents. There were some temporary technical video glitches and occasional sound problems, but the judge and the parties cooperated sensibly to make it work, and within minutes I found that the video based process worked. If we did not have video hearings the backlog would be far higher from the last year, and there would be no immediate opportunity to catch up.

Everyone involved in Tribunal cases must embrace what will now be the common way to have cases heard, certainly for the foreseeable future. My experience is that the quality of justice can be maintained, and what is the quality of justice if a case is subject to years of delay. The whole point of the Employment Tribunal system is to provide speedy good quality resolution of workplace disputes by a specialist court. I have no doubt that issues will arise but I prefer to look at this as the chance to restore the role of the Employment Tribunal, and I recommend that those who will be hesitant should engage and be prepared to be convinced.


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