As Covid-19 illuminates existing inequalities, the current public health crisis is likely to exacerbate long-term inequality. As businesses plan, develop and adapt their responses to the fluctuating crisis, their legal obligation to ensure such responses do not, whether directly or indirectly, adversely affect those with a protected characteristic continues. Potentially discriminatory practices present significant risks to employers, not least because of the uncapped compensation flowing from a discrimination claim and associated reputational damage.
Returning to work
Many workers are still working from home and employers have continuing duties to reasonably secure their health and safety. If a worker, for example, has a disability, their employer should be mindful of their obligation to make reasonable adjustments under the Equality Act 2010, such as the provision of certain equipment to facilitate their work.
Employers are now making decisions on how to manage the return to work and should follow inclusive practices to ensure outcomes are not discriminatory, unless there is some objective justification in doing so.
Direct discrimination, except in the case of age discrimination, however will never be justifiable. For example, allowing people with underlying health issues to continue working from home could be permissible for their protection, however, a blanket prohibition on older workers returning to the workplace because of perceived vulnerabilities is likely to be discriminatory.
Furthermore, staggering start and finishing hours of work across the workforce to reduce the risk of Covid-19 transmission may disproportionately adversely impact women who have childcare responsibilities. The key for employers is to assess all foreseeable risks and mitigation measures, taking into account any disproportionate effects on certain groups of workers and to plan and consult with those workers accordingly.
Rewarding workers for simply remaining at work by, for example, granting discretionary bonuses, and overlooking workers who were shielding and/or furloughed could be direct discrimination. However, rewarding workers for performance related results, where this is a contractual obligation, may not be discriminatory, although employers will need to take care to pro rata any bonus where a furloughed employee has contributed to results during a performance period.
Employers should carefully consider any employee’s refusal to return to work and their reasons for doing so in light of current public health advice. Any disciplinary action, salary withholding or refusal of flexible working requests following an employee’s challenge to return to the workplace should be reviewed with care to avoid discrimination. For example, a pregnant employee may have legitimate concerns about commuting and returning to work and an employer should consider ways to mitigate risks such as allowing that employee to continue to work from home or work part-time.
As the government’s job retention scheme is phased out and winds up on 31 October, employees are making decisions around restructuring their businesses to mitigate loss. Selection criteria for redundancies must be fair and objective. Selecting employees for redundancy who have been furloughed, depending on the reasons for being furloughed, could potentially be direct or indirect discrimination. For example, employees with certain disabilities may have been shielding and unable to come into work or selecting employees shielding vulnerable household members may be discriminated against because of their association with someone with a protected characteristic.
Individual or collective consultation processes may also need to be reasonably adjusted to involve furloughed employees and facilitate their right to be accompanied. Allowing video consultation or extending the consultation period itself are examples of such adjustments. Failure to reasonably adjust a redundancy exercise may make the redundancy process and final decision unfair.
Wider social equality
In recent years, the UK government has legislated to increase transparency and accountability in the workplace by placing the onus on businesses to effect change. For example, from 2017, employers with 250 or more employees must report on men and women’s average pay to flush out any gender related pay gap. In parallel, contemporary social movements, such as the MeToo Movement, have brought workplace discrimination and harassment to mainstream consciousness.
Covid-19 has perhaps shifted priorities towards surviving the crisis. To relieve some pressure on employers during the Covid-19 crisis for example, penalties for failing to report on gender related pay have been suspended until 2021. However, employers should be aware that such reporting obligations and a wider expectation of progress in the workplace, will continue beyond the current crisis and lapses or reversals in, for example, gender pay equity progress, will be scrutinised.
Adam Penman is an employment associate at McGuireWoods LLP