The president of the employment tribunals says he is expecting an influx of new unfair redundancy claims once the furlough scheme ends later this year.
Chancellor Rishi Sunak confirmed last week that the Treasury will gradually withdraw its job retention scheme, which pays employees 80% of their usual wage, over the next five months.
From August, businesses must pay employer national insurance and pension contributions for staff they continue to keep on furlough, and by October must pay 20% of their employees’ wages.
Judge Barry Clarke, president of the employment tribunals for England and Wales, said this week that he expected a 'big increase' of work on the winding up of the furlough scheme, with these cases likely to require a full panel to hear.
‘The impact [coronavirus] is most likely to have is simply when the scheme starts being wound up and we begin to see employers reaching those decision that the furloughing arrangements have allow them to defer,’ Clarke told a webinar hosted by employment barrister Daniel Barnett, of Outer Temple Chambers.
‘I hope that the job retention scheme has been able to minimise the impact of that… but it seems to me likely we will see an increase in redundancy-related dismissals.’
Clarke paid tribute to the efforts of judges and lawyers to keep some tribunals going during this period, but many hearings have been deferred. These are likely to be relisted as soon as possible, pushing back hearings listed for 2021, rather than go to the back of the queue.
The president, who only started in the role three weeks ago, conceded there would be regional disparities in how well the system responds to the current crisis, based largely on when areas have been able to embrace the Cloud Video Platform, which enables remote hearings.
Clarke said some judges and indeed lawyers had expressed reservations about proceeding with cases remotely, and he insisted that no litigant will be forced to conduct their case by video where it was deemed inappropriate.
‘I cannot foresee any circumstance in which a judge forces someone to it,’ he added. ‘What a judge will do is listen to the parties’ submissions, decide what the overriding objective requires and decide what is fair and just.’
Fresh guidance through FAQs was issued this week from the presidents of the tribunals of England and Wales and Scotland. The document includes a ‘road map’ with plans to increase gradually the number and type of hearings which can take place in 2020 while restrictions remain in place. The guidance can be found here.