How to avoid discrimination claims during lockdown and as staff return to work

3 Jun 2020 By Elizabeth Howlett

During a CIPD webinar, the EHRC’s Charlotte Billington warned firms that don’t approach decisions fairly will face ‘employment tribunal claims and costly legal fees’

Keeping up with a seemingly endless wave of updated government legislation is a time-consuming task for even the most efficient people manager. As Charlotte Billington, compliance manager at the Equality and Human Rights Commission (EHRC), said, speaking during a recent CIPD webinar on Diversity and inclusion through Covid-19: “Don’t forget the Equality Act.” 

Billington outlined the major areas for employers and HR teams to remember to ensure non-discriminatory decision-making. “I’m sure you don’t need reminding of this, but please do not forget the Equality Act still applies during the coronavirus pandemic,” she said.

She added that employers that did not ensure they were approaching decisions fairly would be met with “employment tribunal claims and costly legal fees”. 

“There is increased scrutiny on employers at the moment, so make sure the decisions you make aren’t discriminatory or victimising against a certain group,” said Billington. “The public narrative and media focus is currently on employers that aren’t focusing on diversity and looking after employee needs.”

So what can employers do to ensure strong diversity and inclusion practices in the face of continued lockdown and home working, and as staff return to work?

Remember obligations to pregnant women and new mothers

Pregnant workers and those returning from maternity leave have specific protections under the Equality Act, such as unfair treatment and automatic redundancy. Billington warned that employers should treat these women the same as they would any other employee, but taking the risk of Covid-19 to theirs and their baby’s health particularly seriously. 

“If you undertake a risk assessment for a pregnant woman and new mothers, and the risk is too high, employers must find another suitable job for them,” said Billington. “If you cannot find a suitable job alternative, you must suspend her on full pay. 

“If you are making redundancies or furloughing staff, the selection process must not disadvantage an employee because of maternity leave or a related reason.” 

Billington revealed that the EHRC had received a number of accounts of “unlawful and worrying practice” from employers, such as pregnant workers being put on unpaid sick leave or automatically furloughed, alongside “biased working structures” such as women not being allowed to work from home because they had “caring responsibilities”. 

Consider reasonable adjustments 

This is an “essential” consideration, said Billington, who explained that disabled workers could face barriers and disadvantages that non-disabled workers did not.

“Your obligation [as an employer] is to provide reasonable adjustment to level the playing field and make sure people can access work, because in the situation we are in now, that might have changed slightly,” said Billington. 

Billington highlighted examples of reasonable adjustments made during lockdown and remote working, including: organisations offering extra check-ins with line managers for anxious and depressed staff; tweaking hours or roles (such as customer-facing positions) for those with underlying health issues; providing budgets for disabled workers to access software (such as Dragon for dyslexic workers) at home; and open communication to understand the needs of employees. 

Billington reminded people practitioners that the adjustment “need[ed] to be practical, effective and work for both the employer and employee”. However, if adjustments couldn’t be made, employers should consider placing the employee on paid disability leave or on furlough until it was safe for that employee to return, Billington advised.

“Ultimately, you must consult with the employee on what they want to do, and have an open conversation,” added Billington. 

Action points on non-discriminatory decision-making

Billington advised people teams to:

1.Ensure the decisions made, for example who gets extra hours or who is made redundant, are not discriminatory. For example, don't give more hours or specific shifts to men under the assumption they don't have caring responsibilities.

2.Involve employees in decision-making processes in a way that takes into account the needs of different groups. Having a two-way conversation and understanding the individual needs of employees is really important. Think about how you communicate with different groups. For example, people on maternity leave may not communicate through internal channels, so how will you keep in touch with them? 

3.Set up working options in a way that does not disadvantage specific groups of workers. For example, certain policies may not work for everyone, such as employees with mental health issues that may have been exacerbated by lockdown.

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