HR briefing - October 2020

05 October 2020

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you this month’s employment law highlights in an easy-to-read package. We hope all our readers are safe and well in these troubling times.


Job Support Scheme

The Chancellor has announced a wage-subsidy scheme that will replace the Coronavirus Job Retention Scheme when it expires at the end of October. For details of the Job Support Scheme, please see our article.

Job Retention Bonus

Regulations have been published implementing the Government’s Job Retention Bonus scheme, under which employers can claim a £1,000 payment for each previously furloughed worker retained in work up to 31 January 2021. The regulations, in the form of a Treasury Direction, can be found online.

In the courts

Costs awards

In the High Court, the loser typically pays a substantial proportion of the winner’s legal costs, but the Employment Tribunal rules only allow a costs award to be made in a set of tightly defined circumstances: (i) where a party acts vexatiously, abusively or otherwise unreasonably; (ii) a claim (or response) has no reasonable prospect of success; (iii) late delays to hearings; and (iv) non-compliance with Tribunal orders. Clients who have experienced Employment Tribunal litigation will know that the costs can be high, and the prospect of recovering even part of those costs is usually poor. 

That remains the case even after a recent judgment, in which an Employment Tribunal ordered an unsuccessful claimant to pay £432,000 in costs – the highest costs award ever made. The claim alleged a whole raft of failures, including allegations of whistleblowing, discrimination on grounds of age, race and sexual orientation, and unfair dismissal. The judgment makes clear that many of the allegations were wholly unfounded, which led the Tribunal to consider making a costs award. The level appears to have influenced by the claimant’s widespread use of covert recording during his employment, conduct which the Tribunal rightly deprecated. As a general rule, evidence obtained covertly is often admitted by Tribunals because of its probative value, but parties seeking to rely on such evidence are often penalised in costs because of the courts’ inherent disapproval of secret evidence-gathering.

The case is a salutary lesson for litigants. Claimants and respondents should take care not to overstate their cases, not to adduce covert recordings unless absolutely necessary, and only to run arguments that are supported by cogent evidence.

Employment Tribunal litigation and conciliation

A combination of increased claim levels and reduced court resources has led to a huge backlog in the Employment Tribunal system, with a reported 45,000 cases now awaiting determination. The Ministry of Justice has recently introduced some technical changes to the Tribunal rules of procedure in an effort to tackle this growing problem. In future, legal officers rather than judges will be able to deal with a wider range of administrative decisions, High Court and other first-tier tribunal judges will be able to preside over employment cases, and there will be more use of remote hearings. Of more interest to clients, however, are two other points.

First, claims that are withdrawn – typically after a settlement – will not be added to the public register of judgments. This may make it harder to identify vexatious or serial claimants, but will reduce the risk of negative publicity from settlements. Second, the existing Acas pre-claim conciliation system is being amended so that there will be a six-week period for conciliation, instead of the current four-week period, which can be extended by two weeks in some circumstances. The new six-week period is simpler for all parties, and should give greater time for meaningful settlement discussions before positions have become entrenched through litigation.     

In the news

Working from home

Employers and employees have both had to grapple quickly with the huge rise in homeworking during the Covid emergency. It has become apparent that some aspects of the existing employment law regime could usefully be improved to deal with this new way of working. Germany is set to become the first major economy to embark on radical reform of its labour laws, as this Financial Times’ article explains. In the UK, contentious areas that might benefit from better legislation include an employers’ ability to monitor employees working from home; whether employees’ higher energy bills should be tax-deductible or funded by their employer; how health and safety rules should be applied to homeworkers; how working time should be monitored (and potentially limited); and whether fitting out a home office should be a cost for employees or employers. This will be a fascinating area to watch in the coming months and years.