Legal

Tackling Covid-related discrimination

10 Feb 2021 By Naomi Greenwood

Naomi Greenwood discusses what businesses can do to prevent unfair practices spreading in the workplace during the pandemic

Throughout the pandemic, the advice on working has continually changed. We’ve gone from having to work from home where possible, to actively being encouraged to return to the workplace and now, with infections once again on the rise, we are home working again unless we cannot do so.

As businesses focus on managing their workforces during these extraordinary times, employers must remain vigilant, both to the direct and indirect effects of Covid on the management of employees.

The US chief executive of Deutsche Bank, Christiana Riley, said earlier this year that, for her firm, “there is no distinction between someone who’s in the office or out of the office – they’re equally able to do their job and be part of the team”.

But instead of removing these distinctions, could the pandemic actually be amplifying less obvious issues of inequality? While challenges such as presenteeism and the pressure on employees to attend out-of-hours activities and travel may be eased, underlying discrimination – whether conscious or not – could be intensified. 

Discrimination can be both direct and indirect, and employers need to be most wary of the decisions they make that could inadvertently lead to indirect discrimination. Women, for instance, are more likely than men to carry the main burden of managing what are now unpredictable childcare duties – coping with interruptions to their working day and the dreaded homeschooling. After school clubs, once the mainstay for many needing childcare help, are also unavailable. 

These issues inevitably have a greater impact on people on lower pay since they’re the ones less able to afford childcare. Employers must be aware, in such cases, that refusing to accept flexible working or home working requests until we are clear of the pandemic could disproportionately affect working mothers. 

Similarly, the over-50s and people more clinically vulnerable to the virus will likely be disproportionately affected if, as an employer, you turn down people’s requests to work from home. Be careful not to create a culture in which older employees feel pressured to take early retirement, and also be mindful of employees who are carers for clinically vulnerable loved ones, or those with a family member shielding.

Another way to avoid an ‘us versus them’ culture is to carefully manage the reintegration of previously furloughed staff. Many businesses will feel a desire to reward those who’ve worked hard and put in extra hours while their colleagues have been on furlough. How those rewards are managed needs thought; if, for example, a greater proportion of your furloughed staff were female or in a certain age bracket, making bonus payments could unwittingly lead to greater exposure to claims of indirect discrimination in addition to creating a toxic cultural divide. 

Companies across the UK have made great strides in addressing all forms of discrimination in the workplace and creating a healthy workplace culture. Not only is this the right thing to do, but research demonstrates that businesses benefit as a result. However, employers must be careful not to fall into the trap of magnifying the issue of discrimination in the workplace and undoing a lot of the hard work that’s already been achieved. 

Naomi Greenwood is a specialist in employment law at Moore Barlow

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