In a world of change, equality law still applies

How can employers avoid discrimination during the Covid-19 crisis?

These are very difficult times for employers. Every day brings new dilemmas and novel solutions born out of necessity. Which staff should we furlough? Who should we ask to come in to work? What if they have health concerns or caring responsibilities? What if they are pregnant or on maternity leave? Is it fair for us to expect so much of some staff and to furlough others? Whose pay should we be topping up while on furlough? Will staff be redundant if they can't attend work once the furlough scheme ends?

We look in this article at some of the discrimination risks for employers as they make decisions which will impact on their staff. The Equality and Human Rights Commission (EHRC) has recently published useful general guidance for employers during Covid-19 which covers some of these risks and provides advice on avoiding the pitfalls.

What kinds of decisions could be discriminatory?

Any decision-making about contractual terms, working conditions or arrangements could potentially lead to discrimination claims. Decisions which are partly based on considerations such as a disability, maternity, pregnancy or association with a disabled person could lead employees to argue that they have been less favourably treated because of a protected characteristic (direct discrimination). For example, a decision not to allow a woman to return from maternity leave unless she agrees to be furloughed on 80% of pay or a decision to make an employee with a long-term serious lung condition redundant because they are refusing to attend work.

Policies or practices which apply across the board might be argued to put some groups of employees at a disadvantage because of a shared protected characteristic (indirect discrimination). This might apply, for example, where all employees are expected to work from home between 9am and 5pm and if they cannot (for example because of childcare responsibilities) they will be furloughed on 80% of pay. Statistically, women are more likely to bear the brunt of childcare and so such a policy is likely to put women generally, and could put a female employee in particular, at a disadvantage. On the other hand, a policy which requires all employees who do not have a primary caring role to attend work could be argued to put men at a disadvantage as it disproportionately impacts on men and puts them at higher risk of being infected.

Press reports and death rate statistics appear to show that people from a BAME background are more likely to die after catching Covid-19. This gives rise to the possibility that a blanket policy requiring all staff to attend work could put BAME employees at higher risk and so disproportionately disadvantage them when compared to their white colleagues.

Does Covid-19 mean we can justify discriminatory treatment?

Some kinds of discrimination cannot be justified. For example, direct discrimination on the grounds of race, disability, pregnancy/maternity or sex.

Some kinds of discriminatory treatment can be justified in some circumstances; for example, treatment which is directly based on someone's age or based on something arising from a disability (such as sickness absence or being extremely vulnerable to the virus). Indirect discrimination, where a policy applies to everyone but impacts more on protected groups, can also potentially be justified.

Employers should think through whether such decisions can be justified rather than simply assuming that the virus will provide sufficient reason. For example, imagine an employer is proposing that employees who are over 55 years of age should be barred from returning to work while younger colleagues are expected to return. Both groups could argue that they were being less favourably treated because of their age. In order to justify this decision, the employer would need to show that it was a proportionate means of achieving a legitimate aim. The legitimate aims might be to ensure an on-going service to customers and a safe system of work. The question of whether this approach is proportionate would be informed by NHS and Government advice on the varying levels of risk of the virus based on age.  It would also include a consideration of the business needs and resources of the employer organisation, and the likely impact on individual employees. It is possible that the choice of 55 years of age as the cut-off point would not be proportionate. It might be more proportionate to raise the age limit, or to consider the individual health circumstances of individual employees and take decisions on a case by case basis.

Employers should ensure that they document their rationale for any such decisions at the time. This will provide useful evidence should a claim later be brought to the employment tribunal.

Should we furlough our pregnant staff for their own safety?

The EHRC has published specific guidance on pregnancy and maternity during Covid-19.

The guidance on dealing with pregnant employees provides helpful clarification on the question of whether employers should furlough employees who are pregnant in order to protect them from the risks of attending work. The duty on the employer has not changed. Employers must still carry out a risk assessment for all pregnant workers and new mothers. The risk assessment must take into account the job they do, any pre-existing health conditions, the risks of travelling to work and the current social distancing guidance on minimising contact and maintaining a 2m distance from other people. If the assessment identifies risks which are unacceptable, the employer must change working conditions to mitigate the risk or offer the employee a suitable alternative role on not substantially less favourable terms. For example, this might include arranging working from home or offering a role which has restricted contact with others. If this is not possible, the employee should be suspended on full pay. Employers who furlough pregnant employees on 80% of pay because of the health and safety risk could face a direct discrimination claim. If employers do take the decision to furlough pregnant employees, they should top up their pay to 100% to avoid this risk.

Redundancy and maternity leave

The EHRC guidance also reminds employers of their duty to offer an employee who is selected for redundancy while on statutory maternity leave any suitable alternative role in priority to other employees.

If an employee has been furloughed because of maternity leave and is then selected for redundancy because she has been on furlough, there is a risk of a sex discrimination claim. If the employee is dismissed for maternity related reasons and is not offered a suitable alternative role, where one exists, there is a further risk of a claim for automatic unfair dismissal.

Employees who are on shared parental leave and adoption leave when selected for redundancy are protected in a similar way.

Involve employees in decision making

Consulting with colleagues and their representatives before bringing in new policies and practices will help employers to deal with any concerns in advance and to make sensible adjustments to plans following feedback. Your employees' feedback and questions can also be invaluable in spotting operational difficulties in what is being proposed and in ensuring that your message is clear and comprehensive.

It is particularly important to ensure that your communications and consultations on key changes are reaching all employees no matter what their circumstances. Are you sure that your employees on furlough, maternity or other family leave, or on sick leave are being kept "in the loop"? Send out test communications to ensure you can reach all employees and make clear to employees on various types of leave that they should regularly check their email / the intranet or similar forums for new messages.

Frequent communication, transparency and genuine two-way consultation with staff, even where the message will sometimes be difficult to hear, can help to maintain trust and to reduce the risk of conflict, grievances and claims in these testing times.