Legal

Safeguarding BAME employees when returning to work

31 Jul 2020 By Rebecca Hayes

Research shows ethnic minorities are being disproportionately affected by Covid-19. Rebecca Hayes explains how employers can make sure they protect workers going back to the office

People of black, Asian and minority ethnic (BAME) origin are at a significantly higher risk of catching and dying from Covid-19 than other ethnic groups, with individuals of Bangladeshi ethnicity having twice the mortality rate as their white British counterparts, according to a report by Public Health England. What implications do these findings have for employers and what additional considerations should they have in relation to their BAME employees? 

All employers are legally obliged to ensure the health and safety of its workforce. Government guidance remains that where it is possible, employees should work from home. However, what has become clear is that often a higher proportion of BAME employees work in sectors such as retail, public transport and healthcare where working from home is not an option.

Are there currently specific obligations placed on employers in respect of their BAME employees?

Despite the Public Health England report, it remains the case that BAME employees of themselves are not listed as being either ‘clinically extremely vulnerable’ or ‘clinically vulnerable’. 

This is not to say that employers should not consider how they can protect the health and safety of their BAME employees, however. 

Tips for employers

  • Perhaps the most fundamental and obvious action is to consult with their BAME employees about their health and safety concerns. 
  • Where an organisation has a BAME network, engaging with that network will assist an employer to understand the concerns facing BAME employees in their organisation and for BAME employees to feel that their voice is being heard. Engaging with BAME networks and where appropriate, trade unions, will assist not least from an employee relations perspective, but may also help to minimise any potential future claims. 
  • As part of this consultation process BAME employees may notify their employers of their general fears about their safety in the workplace or whether they have an underlying health condition which raises their risk profile and should be taken into account by an employer. 
  • Employers should ensure that all staff are aware of any support and counselling services that the employer has to offer to promote wellbeing and address any mental health concerns. 
  • What is clear is that employers must carry out a Covid-19 health and safety risk assessment in respect of its whole workforce. Arguably where there is a large number of BAME employees, employers should consider whether the risk assessment should take into account relevant risk factors which affect BAME employees. 
  • If there is an identified risk in the risk assessment in respect of certain or all of its BAME employees, if such employees are already on furlough leave, employers could consider whether it is feasible to keep them on furlough and consider topping up to full pay to prevent any potential indirect race discrimination claims.

Can an employer force its BAME employees to work and what are the legal risks? 

Clear communication with BAME employees or a BAME network and documented decision-making will help to minimise the risk of legal claims. 

Where an employee reasonably believes that there is a serious danger to their health, that employee may leave the workplace or take appropriate steps to protect themselves whilst they are at work – and they are protected from suffering a detriment or from dismissal in doing so. If an employer attempts to force the employee to work and then dismisses the employee if they do not comply, such a dismissal may be automatically unfair under the health and safety protections contained in the Employment Rights Act 1996. 

Given Public Health England’s report it is likely that BAME employees will be able to show that any requirement to attend work is indirectly discriminatory against them on the grounds of their race in breach of the Equality Act 2010 because it puts them at a particular disadvantage compared to white employees. This is unless employers can show that they did take steps to protect their BAME employees or that the requirement was otherwise a proportionate means of achieving a legitimate business aim. Employers who are committed to diversity and inclusion will not want to see headlines linking their organisation to a discrimination claim. 

Rebecca Hayes is senior associate at CMS

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