In A World Of Change, Equality Law Still Applies

• Published date: 30 May 2020
• Author: Ms Alacoque Marvin
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Discrimination, Disability & Sexual Harassment, Health & Safety, Redundancy/Layoff, Employment and Workforce Wellbeing
• Law Firm: Wrigleys Solicitors

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...