A recent McKinsey report has found that women’s jobs are more vulnerable to the pandemic than men’s. This is in part because the burden of unpaid care is disproportionately carried by women and because women are overly represented in industries that are expected to decline the most as a result of the pandemic (for example, hospitality and retail).
So what implications do these trends have for employers from a wider UK employment law perspective? The Equality Act 2010 permits women to present claims not just for overt sexism and harassment in the workplace, but also where the detriment women suffer has a more nuanced source. A seemingly neutral stipulation can hit women harder than men – tipping the playing field of working life against them.
Direct and indirect discrimination
IFS statistics show that mothers are more interrupted during paid work than fathers, which can lead to measurable impacts such as drops in performance. Ultimately, this can result in dismissal or an increased risk of redundancy where performance is used as a selection criterion. Alternatively, it may mean women losing out on promotions, missing career-enhancing opportunities and being short-changed when businesses come to consider any bonuses that may be paid in respect of 2020.
Depending on how employers manage these situations – for example, whether they take into account many women’s multiple responsibilities during the pandemic – they may expose themselves to discrimination claims. It’s worth remembering that most senior decision-makers in UK business are men; will they be alert to these risks?
Given the trends outlined above relating to unpaid care, women are proportionately more likely to submit flexible working requests than men. In the Covid-19 context, if a company encourages employees to return to the office and/or work ‘usual’ hours and routinely refuses flexible working requests they are risking expensive claims from women who are unfairly disadvantaged by those practices.
That is not to say that working from home on a prolonged basis is the answer. A ‘new normal’ where more male employees attend the office compared to their female counterparts can be detrimental. Women working from home can’t seize the opportunities of the informal water cooler chats that may lead to business or career development and networking. They won’t benefit from the everyday mentoring or coaching that comes with sharing an office. These issues can lead to a widening gender gap in terms of career progression.
Disaffected women, especially those in mid-tier roles who had hoped to achieve senior positions, may find that employment tribunals are more sympathetic to their plight than they might have expected, and that through the Equality Act they could have a legal route to address their disappointments.
Gender pay gaps
Women have been more likely to lose their jobs as a result of Covid-19 and it’s reasonable to predict younger workers will be particularly badly hit as they make up a large part of the hospitality, retail and arts sectors, which are reeling from the pandemic. Given the existing graduate recruitment crisis, that will leave many more women without work, who have invested heavily in their futures. At the same time many organisations will have had to put on hold initiatives to tackle gender inequality issues given the pandemic.
As a result we expect gender pay gap reports to reflect widening inequalities. Employers will want to fully understand and explain such inequalities, especially as gender equality is increasingly important for PR purposes and to attract and retain the best talent.
Anne Pritam is a partner and Leanne Raven a professional support lawyer at Stephenson Harwood