Legal

How can businesses protect BAME employees returning to work?

16 Jun 2020 By Paida Dube

With figures showing ethnic minority groups are at a greater risk of dying from coronavirus than the white population, Paida Dube explains what employers can do to safeguard staff

According to recent ONS analysis, black, Asian and minority ethnic (BAME) people are four times more likely to die from a Covid-19-related cause than white people. Even after accounting for differences in age, sex, geography and self-reported health and disability factors, black people are still twice as likely to die from the virus, and individuals of Bangladeshi, Pakistani, Indian and mixed ethnicity also have a high risk of death compared with the white population.

In light of these statistics, and with little scientific understanding of the factors underlying the disproportionately high coronavirus death rates, for many BAME workers, returning to the workplace has now become a decision between earning a living and safeguarding their health. Yet there remains no official government guidance or data in this area. NHS England last month issued guidance that on a “precautionary basis” all NHS employers should risk-assess staff from BAME backgrounds, along with others who may be at higher risk, and “make appropriate arrangements accordingly”.  

As the government focuses on easing lockdown, what do employers need to consider to protect BAME workers returning to the workplace?

Fear of serious harm in the workplace  

Employees have the right to bring a complaint against their employer where they believe their health and safety is at imminent risk of serious harm in the workplace. This could plausibly extend to BAME employees who statistically face a greater risk of dying from coronavirus.

To support a safe return to work, and to mitigate the risk of potential claims, employers are advised to risk-assess every employee’s position on an individual basis. Taking an individual approach should also help to mitigate the risk of discrimination complaints from non-BAME employees. 

Workers refusing to attend work because they fear serious imminent danger do not need to show actual risk – only that they were reasonable in believing that the workplace presents serious and imminent danger.

Employers should encourage employees to raise their health and safety concerns. Any individuals who are not able to work from home and who reasonably believe that they are, or may be, at a particular risk should make this clear to their employers in writing, with suggestions for adjustments or changes to address their concerns. Businesses need to take all such concerns seriously and work with the employee to discuss alternatives, such as working from home or changing (redeploying) to a ‘safer’ role. 

Employees should not be threatened with, or subjected to, disciplinary action or dismissal by reason of expressing workplace safety concerns.   

Vulnerable and shielding workers

Whether workers are classed as vulnerable or shielding should also be a consideration. The guidance on vulnerable and shielding individuals has now been divided into high risk and moderate risk. Both levels have conditions that statistically affect BAME workers more. 

Again, the individual risk assessment should be used to ascertain each worker’s risk level, with employers following up as appropriate through occupational health or medical assessments where necessary.

Enabling a safe return to work 

In the absence of specific guidance in relation to BAME workers, key pointers for employers include: 

  • As per the latest government guidance, workers should continue to work from home wherever possible. 
  • Before any return to the workplace, a detailed Covid-19 risk should be conducted to lessen the risk of infection. The assessment should consider each employee’s different needs. This could include giving BAME employees appropriate work or protection given the higher Covid death rates among black and other ethnic minority groups. 
  • Review working practices to ensure that employees can adhere to social distancing rules and keep two metres apart. Think in particular about hygiene and protection measures, as well as how working areas, meeting rooms and communal areas such as kitchens and toilets will be used and cleaned. 
  • Employers’ duty of care and the duty under health and safety laws extend to mental health and wellbeing as well as physical. Every employee has experienced this differently and employers need to consider situations such as BAME workers fearing increased risk of fatality from infection. Businesses will need to take any such concerns seriously and consider appropriate adjustments. 
  • Re-inductions are helpful for employees who have been working from home or have been furloughed to cover new or adapted routines and procedures, with training to ensure correct usage of any PPE. 
  • Keep communicating with your workers. Keep them informed of measures the business is taking to protect them and ensure they are returning to a safe working environment. Ensure employees are aware of the steps they should take if they start to feel unwell at home or at work.

It remains essential that employers continue to base their plans for returning to the workplace on the latest government and HSE guidance, while keeping in mind the physical, emotional and mental wellbeing of the workforce. 

While employee safety and welfare should be the driving concerns in return to work plans, businesses must also remain attune to their legal obligations and the risks of failing to meet these. 

Paida Dube is an employment solicitor at DavidsonMorris

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