Big increase in tribunal claims involving part timers and older workers

Over 93% of cases for ‘redundancy – failure to inform’ were successful at tribunal in the last year,  according to a report from law firm Wright Hassall, which shows big increases in cases related to part-time regulations and age discrimination.

The report says the most common complaint to an employment tribunal over the last 10 years is under the Working Time Directive. This protects the rights of workers in terms of how much time they can legally be asked to work, as well as guaranteeing a set minimum number of paid holidays and rest hours between shifts, amongst other things. This is by far the most common complaint to an employment tribunal, with 456,210 claims being issued in the last decade.

In 2020/21, however, Working Time Directive claims were second to unfair dismissals. Since the pandemic, however, the biggest increase in tribunal cases has been in those related to part-time regulations [up 767%] and age discrimination [up 530%]. Part-time regulations are designed to protect part-time workers, ensuring that they are treated equally to their full-time counterparts, and are not discriminated against because of their part-time status. Age discrimination cases related to people being treated differently at work due to their age, allowing them to work on an equal footing with younger or older colleagues.

The most successful cases relate to a failure to follow proper procedures in redundancy. 29.5% of age discrimination cases were settled out of court. Only 9% went to tribunal with 20% of these successful – the lowest success rate for tribunal action in the 22 top reasons for tribunals, although other categories had a lower overall success rate [settlements and tribunals]. 38% of part-time regulation cases were successful at tribunal and 33% of sex discrimination cases. Equal pay claims had the lowest combined score as less than 1% went to tribunal, although when they did go to tribunal they were more successful than age discrimination cases.

The report shows a long-term trend for fewer cases to be settled out of tribunal without going to a hearing, a rise in the success rate of hearings and an overall decrease in successful cases due to the fall in settlements which it says tips the balance in employers’ favour. This may in part be linked to the introduction of fees between 2013 and 2017 which led to a fall in claims being issued.

However, since the pandemic there has been an increase in out of court settlements of 9.75% against pre-pandemic levels. 9.58% fewer cases are reaching hearings than the previous year, which could be explained by external pressures from the coronavirus outbreak, says the report. While out of court settlements have risen, the success rate of hearings has fallen, with 4.11% fewer successful hearings. This has resulted in a small rise in overall successful outcomes of 2.85%.

Fire and rehire advice

Meanwhile, Acas has published new advice today on the practice of firing and rehiring which it says can help employers maintain good employment relations and reach agreement with staff if they are thinking about making changes to their contracts.

Acas advice is that organisations that are considering contract changes should fully consult with all affected staff and their representatives “in a genuine and meaningful way”.

If both sides are finding it difficult to reach an agreement then Acas advice includes tips on how to:

• keep discussions constructive;
• explore alternative options to reach a compromise; and
• stay focused on trying to reach consensus.

Acas advises that the practice of fire and rehire is an extreme step that can damage staff morale, productivity, working relations and can also lead to industrial action.

Other risks for employers in using fire and rehire practices can include:

• making it harder for both sides to reach a negotiated solution if employees feel ‘threatened’ by an employer
• expensive legal claims from staff who feel that they have been unfairly dismissed or discriminated against;
• reputational damage, which can make it difficult for an organisation to attract new employees;
• immediate and long-lasting damage to trust with staff; and
• losing valued people because they do not accept the offer of a new contract, or staff leaving later due to unhappiness over the change or the way it was made.

Acas’s full advice is available at: http://www.acas.org.uk/changecontract

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