Avoiding complaints of discrimination when adapting working practices or taking business decisions due to COVID-19

COVID-19 has resulted in huge changes to working arrangements being implemented in a short space of time, with some industries seeing people unable to work altogether. Anyone who can work at home should now be working at home and those individuals classified as particularly vulnerable should be self-isolating in any event. What consideration should be given to those with protected characteristics as working practices change and business decisions are taken?

Working practices

In managing staff and implementing new working arrangements, employers should keep in mind their obligations under the Equality Act 2010, including avoiding any discrimination which may arise inadvertently as a result of changes being introduced.

The key groups highlighted as having factors that make them more susceptible to the more severe symptoms of COVID-19:

  • Individuals over 70
  • Those who are pregnant
  • Individuals with pre-existing health conditions including diabetes, a weakened immune system, heart and lung conditions (conditions which may be capable of constituting a disability under the Equality Act 2010 depending on duration and severity.)

The very fact that those individuals that should be self-isolating are more likely to be doing so for reasons relating to a protected characteristic (such as age, pregnancy/ maternity or disability), means employers will need to take care not to discriminate against these groups or those associated with them.

These individuals should not be required to attend work if they are unable to work remotely, as applying a policy that they do could be discriminatory. For example, a practice or policy of requiring all staff to attend work because that work cannot be done from home, could put someone who is over 70 at a particular disadvantage compared with those who are under 70, owing to the increased risk that COVID-19 poses to older people. A blanket requirement of this kind could therefore be indirectly discriminatory and exceptions to blanket policies should be carefully considered.

Ordinarily there would be a potential defence available to employers in an indirect discrimination scenario if they could show that such policy was a proportionate means of achieving a legitimate aim. However the current climate is unlikely to give rise to any justifiable arguments allowing an employer to rely upon their policy being based upon achieving a legitimate aim  

Considerations an employer may need to make to take into account for individuals who have a protected characteristic could include:

  • Providing the relevant equipment to make working from home possible, and whether any further equipment such as a particular chair or screen need to be supplied to certain employees
  • Ensuring any necessary health and safety checks have been undertaken
  • Considering whether changes to working times/hours need to be made in light of additional caring obligations, for example if a vulnerable relative becomes ill or requires assistance (thus defending against discrimination by association claims)
  • Whether any further control measures should be put in place to assist with wellbeing
  • If working from home isn’t possible, considering whether any time off is required for health reasons and whether any adjustments can be made to working conditions to assist the safety of employees, such as reduced working hours or increased cleaning measures

In reality, many of the steps that employers should take in ordinary circumstances will not be possible at the moment. Assessments of home working spaces or delivery of equipment may not be essential travel and may be a direct contravention of government advice to limit all contact. It is therefore recommended that employers keep up to date on the latest government advice, keep under review whether it is safe and reasonable to make certain changes and document their approach. If faced with a claim later down the line, employers who have given these issues some thought and reached reasoned conclusions about the viability of supporting employees (and in particular employees with protected characteristics) in a certain way will be in a stronger position to run a viable defence.

It is also possible for an employee to bring a claim that they have been discriminated against not by having a protected characteristic, but by being associated with an individual with a protected characteristic (associative discrimination). Care should therefore be taken if an employee reports that they are unable to follow usual management instructions as a result of living with someone in a high risk category.

Focus on disability:

Not everyone who may be more vulnerable to COVID-19 will be disabled and COVID-19 itself would not constitute a disability. However, if an employee’s underlying medical condition constitutes or may constitute a disability under the Equality Act (defined as a physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day-to-day activities) then particular care should be taken.

In particular, employers should ask themselves:-

  • Whether any decision or action towards a disabled employee which would disadvantage them is because of something which arises in consequence of their disability;
  • Whether reasonable adjustments are required for disabled employees in response to any new working practice implemented (this must be considered where any practices place the disabled individual at a substantial disadvantage in comparison to colleagues who do not share the disability);
  • Whether any practice or policy is implemented because of any disability and could be seen as less favourable towards a disabled individual.

If the answer to any of the above is ‘yes’, then advice should be sought before implementing the changes to working practices.

Conduct in the (virtual) workplace

News headlines in recent weeks have reported incidents of comments being made against Chinese or British Chinese people who have been discriminated against or harassed on the grounds of their race in  light of COVID-19.

Any treatment of this nature of employees in the workplace would be unlawful discrimination and steps should be taken to prevent such behaviour from occurring. Employers are vicariously liable for the conduct of their employees, so now may be a good time for employers to check their policies are up to date and that training modules have been completed on diversity and equality. A difference in treatment of certain nationalities or a poorly pitched joke related to coronavirus could result in a discrimination claim and in any event is not treatment that should be tolerated.

Business decisions where an employer needs to identify some employees to reduce its current workforce- navigating discrimination risks

Where working from home is not possible, businesses will be considering options including designating employees as furlough workers in line with the Coronavirus Job Retention Scheme, lay off or short time working and redundancy for all or part of its workforce. 

If only part of the workforce is not needed, for example if the business is still open but only a limited amount of work can be done remotely, then employers will need to consider how to choose which staff should be subject to such measures without discriminating against groups of individuals with protected characteristics. For example, selecting staff who need to be self-isolating because they are more ‘at risk’ from COVID-19 as primary targets for either redundancy or being designated as a furlough worker may in fact be discriminatory if these individuals are able to work from home. Advice should be sought on how such decisions can be implemented in a manner which minimises the risks of discrimination as far as possible.

Overall, employers should operate a consistent approach towards employees, but equally listen to and consider the individual needs of employees, making adjustments where necessary to ensure an equal working environment so far as possible.

We have already seen significant changes to our ways of life over the last few weeks and there will still be new challenges to come. It is recommended that employers listen to employees, their concerns and personal circumstances, provide regular updates on how events impact employees’ work and be flexible wherever possible.

If you would like further guidance in relation to any of the issues raised above please do get in touch with the Employment Team at Ashfords or the Coronavirus/ COVID-19 area on our website..  

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