“Wish I could say yes, but I can’t!”
As Alpacas we like to gather and ruminate about what we are seeing out in the world of business. We like to be positive Alpaca’s and not weary Eeyore’s but there is something we have noticed that we wanted to share with you; there has been a noticeable upsurge in employee litigation and data subject access request (DSAR) submissions since the start of April.
We know from the work we have done to support clients through various restructures over the last few months, even if the process follows the letter of the law and is carried out in a respectful way, employees are still making claims. This is an unprecedented time. The number of people out of work means that the chance of finding alternative work is reduced significantly and in some sectors it’s non-existent.
Employees are quite rightly devastated when their jobs are no longer there and their reactions to some extent can follow the Kûbler-Ross Grief Cycle; for those of you not familiar with this, it’s a process of five stages that are the most commonly observed by the grieving population. The process starts with ‘Denial’, trying to avoid the inevitable. “This isn’t happening to me”; “Why has this happened now”; “They can’t manage without me”. The reactions then move into ‘Anger’, a frustrated outpouring of bottled-up emotions; “The company haven’t thought this through”; “They don’t know what they are doing”; “What am I going to do now?”; “I’ll show them they can’t treat me this way!” After Anger comes ‘Bargaining’, seeking in vain for way out; “you have only selected me because….., you should have selected him/her instead”; “if you pay me more, I won’t make a claim against you”; If you let me remain, I’ll work the same hours but you can pay me less”. Depression follows Bargaining and for some people depression can manifest itself in hostility or feelings of helplessness. “they just haven’t listened to me, I’ll show them”; “what am I going to do, there are no jobs available?” Finally, the grief moves into ‘Acceptance’, finding a way forward. Not in the sense that “it’s okay I got made redundant” rather, “I got made redundant, but I’m going to be okay.” It doesn’t mean the decision you made for the employee was a ‘good’ thing, but its something they can live with and move forward.
Find the time to speak to employees, even if you have completed the process (the lawyers will kill me for saying this!), acknowledge their feelings and reactions. Make sure they understand that this was not about them as a person but about a situation outside of their control. Signpost them to support, which could be their GP. If you can arrange outplacement support, please do, there are some good companies out there who provide very personalised support who we are happy to recommend.
Which brings me round to how is this is being felt by employers. When employees are in the grief cycle there is genuine anger and hostility, in some respect they have nothing to lose by making a claim or submitting a DSAR as a ‘fishing’ expedition, but for the employer this becomes time consuming and potentially complex and costly at a time when their focus is on surviving in the current climate. A DSAR must be responded to, you can’t ignore it away. You can require the request to be more specific and you can also explain that it will take you longer to respond if it is complex and you then have three months to respond.
On a more practical note, we have seen that ACAS is overwhelmed with the number of claims being made and tribunals are allocating dates in 2021 and 2022 for hearings. We have experienced ACAS not having the resource to allocate a conciliator at early-stage conciliation, giving both parties the false impression that the other is not interested in settlement. This is the crucial time where a business can explore settlement and avoid costly litigation, but for some organisations this is being missed. If you receive a claim without any prior notification, contact ACAS immediately to find out why this is, as it does not necessarily mean the door is closed on an early commercial settlement.
Will it get any easier, possibly not! Looking forward, we anticipate one of the biggest issues for employers going into 2021 will be their working model, and specifically working from home and flexible working requests. During 2020, many employees were working from home and/or working hours around caring responsibilities. If you now want to get back to people working in the office and create that collaborative work environment, expect push back, expect challenges and be prepared in how you are going to respond.
So, although this started with a bit of an Eeyore moment, in the words of Pooh “Rivers know this: there is no hurry. We shall get there some day.”