Covid and the Courts

By Anita Jaynes on 15 March, 2021

Peter Woodhouse, Head of Business Sector and Employment Team at Bath headquartered law firm Stone King discusses how businesses can avoid employment tribunals during Covid-19.

The pandemic and its ensuing economic fallout have significantly increased the potential for friction in the workplace. In light of how easy it is to take a case and the increased reasons for many wanting to do so, a sensible employer should do everything it can to reduce the chances of being on the wrong end of an employment tribunal case.

If an employee wants to take out an employment case against an employer there is very little to stop them. While legal aid is not (in practice) available to employees, many household insurance policies offer tribunal cover. In any event, employees are permitted to represent themselves. On top of that, there is a presumption against awarding costs in tribunals. With all that, it’s not surprising that some employees take the view that they have little to lose by taking a case. Of course, sometimes these cases are fully justified.

In the face of the pandemic, some workplace friction has been linked to attempts by employers to reduce wages. Some companies argue that in the face of shrinking revenue they can’t afford to maintain wages. On the other side of the ring are employees who see possibly already low wages reduced even further. Cases where the parties can’t resolve this amicably are already reaching the tribunal.

So, what can employers do to avoid getting there, or if they do, improve their chances of winning?

For me, the way to do this is comparatively simple – inform and consult with your staff. Your average employee is not daft – they know what is happening to the economy and will know there is a potential impact on them. Your average employment tribunal judge is not daft either and is likely to recognise the need of businesses to lose staff – or cut wages to save jobs. What can aggravate and incite staff is disempowerment – a sense that what is being done is being done to them rather than with them. The same thing can aggravate employment judges.

So, in practical terms, if an employer needs to cut wages then it should seek agreement from staff. In the absence of agreement, it should not just unilaterally impose the changes, rather it should explain the situation and then if necessary get the result it needs through a fully informed, transparent dismissal process involving an offer of new employment on the reduced pay. In this process, the employer should collate the evidence to show the anticipated damage to the business if this action was not taken and the reasons for taking the approach it has. 

I am often asked whether an employer who is contemplating cutting staff wages should do so across the whole workforce or business unit, or try and focus the cuts on particular non-productive staff. My view, supported by a recent employment tribunal case I’ve been involved in, is that the employer has a discretion around this inasmuch as either approach, properly reasoned, should stand up in court.

To find out more about Stone King visit: www.stoneking.co.uk and to contact Peter email: peterwoodhouse@stoneking.co.uk