Member Article

Our latest article provides a useful checklist to help in-house legal teams consider potential implications when dealing with employment claims arising from the pandemic, which are linked to civil and/or criminal claims and the COVID-19 public inquiry.

Companies have been receiving Employment Tribunal claims arising from the pandemic – ranging from unfair dismissal (no jab, no job) to whistleblowing and bullying claims relating to alleged employer breaches during the multiple lockdowns. Some of those claims may be related to civil claims for loss, furlough claim abuses with HMRC, health & safety issues and referrals to the police. If those employers are asked to give evidence to the COVID-19 inquiry then the general counsel and legal team will be asked to provide both strategic and legal advice to the Board.

We have set out below some of the considerations and potential implications of decisions to assist those legal teams when dealing with any of the above linked proceedings.

• Create a checklist of issues to consider with overlapping claims.
• Whilst the courts have held that in principle there is no reason why linked cases cannot proceed simultaneously, often one or more is stayed pending the outcome of another.
• Clearly define the scope and purpose of any investigation.
• Consideration of privilege – legal/litigation privilege; are different international laws of privilege involved/privileged waived?; without prejudice or not?
• Who to notify – must be compliant from a corporate governance perspective - personal (criminal) liability considerations for directors/officers; sanctions/FCA or equivalent implications?
• Suspension – what are you doing with the employee pending investigation/disciplinary/court case?
• Self-incrimination – parties’ privilege against self-incrimination remains intact.
• Police may be better placed to conduct investigations – parties could benefit from waiting for investigation/delay/commercial pressure to progress.
• By proceeding with an employment tribunal hearing could that compromise a police investigation?
• Parties could avoid further costs of litigation by allowing criminal matter to run its course – outcome could determine civil/employment tribunal outcome(s).
• Parties cannot dictate direction of criminal investigations/proceedings – lose control and delay – pay during suspension?
• Frequent delays in criminal matters – employer may not want uncertainty surrounding suspension/civil action.
• No guarantee the resolution of criminal proceedings will assist tribunal matter – different burdens of proof in employment, civil and criminal cases.

In addition to considering how best to approach overlapping claims, there is a concern that evidence companies give to the COVID-19 inquiry could be used against them in subsequent legal proceedings. We have commented on this issue in our article To answer or not to answer, that is the question (shoosmiths.co.uk).

Companies will rely on their in-house legal teams to chart a safe course through the choppy waters created by any overlapping claims, mindful of a potential sandbar-like summons to give evidence to the COVID-19 Inquiry.

 

Link to article