Welcome to our latest employment litigation newsletter
The post-Covid period is setting a next phase in employment tribunal operation with a new tribunal "roadmap" for conducting proceedings having been published. The roadmap confirms that extensive digital and remote interaction will remain, going forwards, but with a more targeted approach. The tribunal system is also continuing to make advances with its digital capacity through the HMCTS Reform Programme, which is developing software to facilitate electronic case management and the eventual removal of paper from employment tribunals.
Despite these ambitious electronic developments and aspirations, a software change last year has meant that Government statistics of employment tribunal claim numbers and type since 2021 have not been accessible in the interim and it is only recently that publication of these data has resumed. The latest statistics to be published by the Ministry of Justice relate to the period January to March 2022 and indicate that claim numbers declined in that period (multiple claims significantly so) and have returned to pre-pandemic levels. In isolation and following what has been a tumultuous period in both collating the data and for litigation, it is difficult to compare these statistics meaningfully with those pre March 2021. However, reducing the significant backlog in cases clearly remains an ongoing challenge and the latest figures suggest case receipts continued to exceed disposals during the period, with 42,000 outstanding single cases. From an Eversheds Sutherland perspective, our own recent experience also reflects the latest tribunal data and the significant rise in the number of class actions being dealt with by tribunals in recent months. Looking further ahead, we would anticipate that several recent rate rises may lead to more challenges over employment status and pay and consequential litigation, for example over compliance with the national minimum wage, which rose to £9.50 per hour for many adults from April.
Case law also continues to provide important insight into areas of litigation, with pandemic-related decisions continuing to evolve, personal social media profiles becoming more relevant and with recent clarifications over disclosure and openness in tribunal proceedings, the latter of which we touch on further in our "emerging trends and themes" and "recent cases of interest", below.
As usual, we also highlight below some of the latest topical and practical litigation issues for employers and case law developments.
Highlights
Our recent webinar presented by Naeema Choudry, Mark Pipkin and Wie-Men Ho, regarding "the Rise of Class Actions", addresses issues such as some of the reasons for the rise in these types of claims but also important tactical considerations for employers. View the recording and see also trends, below.
Following our webinar, above, we will be presenting a further webinar on 27 September 2022 from 16:30 - 17:30, focusing on "Equal pay and class actions". An invitation will be circulated shortly but please feel free to register here in advance.
Look out for future podcast topics later in the year, including giving evidence from abroad and s145B claims. A future podcast will also consider the rise of the menopause as an issue employers are engaging with at work. Further details will follow in our next newsletter.
As court and tribunal activity increases, post-pandemic, you may find our Employment Litigation brochure and our Strategic Litigation flyer useful in terms of the key litigation areas they identify and relevant tips/ considerations.
News
Some emerging trends and themes
The latest employment tribunal statistics (see above) and recent Eversheds Sutherland experience suggest a notable increase in group claims, also known as class actions. This is borne out also by Acas data and is a significant development for employers in terms of how they respond to volume claims but also in turnaround time for doing so. For further insight into this issue, listen to our recent webinar recording: The rise of class actions.
Transparency and openness to evidence in the employment tribunal is always an important aspect of litigation but has once more been under the spotlight in recent cases. The decisions serve as a reminder for parties to litigation that, when it comes to requests for witness anonymity or the privacy of certain evidence, it cannot be taken for granted that a tribunal will allow this, even where the parties agree to it. In the case of Frewer v Google UK Ltd., for example, the employment appeal tribunal reiterated that there may be a public interest in naming individuals or entities involved in employment litigation. Furthermore, in the case of Guardian News and Media Ltd v Rozanov, it was held that that tribunal documents, including skeleton arguments and witness statements, should be disclosed to a journalist in the interests of open justice. In some cases, knowledge that anonymity or secrecy cannot be guaranteed may well influence the tactics of litigation or even a party's decision whether to proceed. As a related topic, online profiles and comments have also been at the forefront of some recent cases, such as Forstater v CGD Europe, where discrimination was found to have occurred on the grounds of gender beliefs and, in Higgs v Farmor's School, where an appeal hearing was postponed when a tribunal lay member was recused over online comments regarding gender identity issues.
The latest research data regarding the impact of the menopause at work, published by the Fawcett Society, suggests 8 in 10 affected employees receive no support from their employer. Pressure upon employers to respond has been growing in the last few years, through various campaigns and from various quarters, but what is also apparent is that rising awareness of this issue is being reflected in employment tribunal claims and application of the law. Data from HM Courts and Tribunals Service identifies that the menopause was cited in three times as many cases in 2020 as 2018 and showed a further significant rise in 2021. Recent examples include the case of A v Bonmarche, in which a manager's hostile response to an employee going through the menopause was found to have amounted to unlawful harassment on grounds of age and sex and the case of Rooney v Leicester City Council (see our Spring newsletter), where focus was upon the employee's menopause symptoms as a potential disability. As the menopause continues to grow as a topic of workplace discussion, employers may well wish to grasp the nettle and act now to support struggling employees but to also avoid costly litigation. There have even been calls upon Government to make menopause a protected characteristic under the Equality Act 2010, although these are currently resisted. We will be considering these and other issues for employers in our autumn podcast on the menopause. Look out for further detail in our next newsletter.
Pandemic-related judgements continue to emerge, albeit there is still some way to go before settled precedents are likely to be set. In the case of Rodgers v Leeds Laser Cuttings, the employment appeal tribunal has upheld an ET decision that the dismissal of an employee who refused to return to work due to fears over COVID-19 was not automatically unfair. The employee believed that COVID-19 presented circumstances of serious and imminent danger "all around" but did not raise or identify any specific issue within the workplace. It was found that he could reasonably have averted danger by abiding by the guidance applicable at that time.
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