COVID-19 Coronavirus Business Impact: EHRC guidance on equality and discrimination issues

May 06, 2020

Introduction

The Equality & Human Rights Commission (“EHRC”) has this week issued guidance on equality and discrimination issues during the COVID-19 pandemic. This OnPoint summarises the recommendations made in this guidance which employers should bear in mind as they continue to manage the risks arising during the current crisis and as they continue with planning for eventual return to the workplace for those who are currently working remotely.

Coronavirus (COVID-19) guidance for employers

The EHRC’s Coronavirus (COVID-19) guidance for employers published on 4 May 2020 aims to assist employers in making inclusive decisions to support staff through the challenges faced in responding to the COVID-19 pandemic.

Along with a reminder of the various protected characteristics and the various types of discrimination claim that can be brought under the Equality Act 2010, this guidance unsurprisingly flags the risks that employers face in this context – in terms of employment tribunal claims, compensation awards and reputational risk. It also highlights the EHRC’s view of the business sense of inclusive practices, for example in attracting talent, increasing commitment and retention, and building organisational resilience and reputation.

Examples of discrimination

The guidance provides various examples of how the various forms of prohibited discrimination might arise in the context of the COVID-19 pandemic. Employers should not:

  • Directly discriminate, for example, by selecting a woman for redundancy or furloughing her because she is pregnant or by asking a female employee who is working from home to make contact with her manager more than a male employee because of a stereotypical assumption that the woman is more likely to be distracted from work by her children.
  • Indirectly discriminate, for example by requiring – without objective justification – all employees to continue to work in front line roles where that would have a greater impact on those who need to self-isolate or follow applicable social distancing guidance more strictly, such as disabled, older or pregnant employees.
  • Treat a disabled person unfavourably because of something connected to their disability without objective justification – for example, where an appeal against a redundancy decision is submitted late due the employee’s disability and not permitted to proceed.

Equality impacts

The guidance encourages employers to consider the equality impacts of their decisions and recommends, amongst other things, that they seek to ensure that:

  • Their decisions – for example, relating to redundancy or allocation of hours – are not based on or affected by an employee’s protected characteristic.
  • Their decision making processes take into account employees’ protected characteristics – for example, those on maternity leave are communicated with and accessible methods of communication used with disabled employees.
  • Working arrangements do not disadvantage workers with protected characteristics – such as those in particular age groups, disabled employees, women or pregnant workers. Selection for home working, reduced hours or furlough should be based on business requirements and not on a particular protected characteristic. The guidance notes that, where possible, it is best practice to consider what the employee wants to do.

Reasonable adjustments

The EHRC has also updated its guidance for employers in the context of the pandemic with regard to the duty to make reasonable adjustments for those employees who are disabled for the purposes of the Equality Act 2010.

This guidance reminds employers that their overall aim should be, as far as possible, to remove or reduce any substantial disadvantage faced by disabled workers which would not be faced by a non-disabled worker and that the reasonableness of an adjustment depends on all relevant circumstances including its effectiveness, practicability and cost, the employer’s resources and size and the availability of financial support.

Examples of reasonable adjustments

This guidance provides the following examples of where adjustments might be reasonable in the context of the COVID-19 pandemic:

  • Where customer contact cannot be avoided altogether, redeploying an employee with depression and anxiety away from a customer facing role in which the individual is experiencing increased levels of anxiety as a result of customer contact.
  • Asking managers to provide more frequent check ins or phone calls with staff who may be struggling with their mental health.
  • Asking an employee who is self-isolating because of their disability or health condition to agree to change or swap around roles.
  • Installing a ramp to ensure that a temporary office to which a disabled employee has been relocated in order to ensure social distancing is accessible.
  • Paying for a disabled employee who uses voice activated software when in the workplace to have such software installed on their personal PC equipment when remote working.

Where adjustments cannot be made to enable a disabled employee to remain in work while reducing the risks presented by COVID-19 or any such adjustments are not reasonable, the guidance recommends that employers should consider whether it would be reasonable to offer to place the employee on disability leave or to furlough them until it is safe for them to return to work and indicates that, where possible, it is best practice to consider what the employee wants to do.

Conclusions

The EHRC guidance is a timely reminder for employers of the need to bear in mind the discrimination law aspects of the challenging decisions which they need to take in relation to working arrangements during the pandemic and the eventual relaxation of lockdown. Employees challenging the appropriateness of an employer’s actions may refer specifically to the EHRC guidance in support of their complaints. Employers will need to consider how they ensure that the equality impacts of their workforce and workplace planning are monitored and managed appropriately – and where appropriate the basis for specific decisions recorded.