Perhaps the most positive thing to come out of the current crisis is the intense focus it has brought on systemic social inequalities.
Through the ongoing economic and health catastrophe and the parallel resurgence of the Black Lives Matter movement, awareness of conscious and unconscious bias and racism has been raised and the causes and consequences of discrimination are squarely at the top of the agenda.
These are extraordinarily difficult times for employers in the higher education and SU sector. Every day brings new dilemmas and novel solutions born out of necessity. Decisions about who should be furloughed, who can work from home and who can be asked to come in to work; dealing with the health concerns or caring responsibilities of staff; understanding the situation for staff who are pregnant or on maternity leave; and appreciating the increased risks for older staff and those from BAME backgrounds.
As the economic reality of the next few academic years looms, decisions will also no doubt need to be made about which roles may be redundant as the furlough scheme morphs and comes to an end.
Decisions of these kinds should be taken only after considering the discriminatory impact they might have on employees with particular protected characteristics. The Equality and Human Rights Commission (EHRC) has recently published useful general guidance for employers during Covid-19 which covers some of these risks and provides advice on avoiding the pitfalls. Where relevant, employers will also need to consider their public sector equality duty and carry out Equality Impact Assessments before making changes.
What kinds of decisions could be discriminatory?
Any decision-making about contractual terms, working conditions or arrangements could potentially be discriminatory. Decisions which are wholly or partly based on considerations such as age, race, maternity, pregnancy, disability or association with a disabled person could lead employees to argue that they have been less favourably treated because of a protected characteristic (direct discrimination). For example, a decision not to allow a woman to return from maternity leave unless she agrees to be furloughed on 80% of pay or a decision to make an employee with a long-term serious lung condition redundant because they are refusing to attend work.
Policies or practices which apply across the board might be argued to put some groups of employees at a disadvantage because of a shared protected characteristic (indirect discrimination).
A recent Public Health England report clearly shows that people from a BAME background are more likely to be infected by Covid 19 in the first place and are more likely to die as a consequence. A blanket policy requiring all staff to attend the workplace while this increased risk remains could clearly be argued disproportionately to disadvantage BAME employees when compared to their non-BAME colleagues.
Indirect sex discrimination could occur, for example, where all employees are expected to work from home between 9am and 5pm and if they cannot (for example because of childcare responsibilities) staff are offered contracts on reduced hours and pay or are made redundant.
Statistically, women are still more likely to bear the brunt of childcare and so such a policy is likely to put women generally, and could put a female employee in particular, at a disadvantage. On the other hand, a policy which requires all employees who do not have a primary caring role to attend work could be argued to put men at a disadvantage as it disproportionately impacts on men and puts them at higher risk of being infected.
Does Covid-19 mean employers can justify discriminatory treatment?
Some kinds of discrimination cannot be justified. For example, direct discrimination on the grounds of race, disability, pregnancy/maternity or sex.
Some kinds of discriminatory treatment can be justified in some circumstances; for example, treatment which is directly based on someone’s age or based on something arising from a disability (such as sickness absence or being extremely vulnerable to the virus). Indirect discrimination, where a policy applies to everyone but impacts more on protected groups, can also potentially be justified.
Employers should think through whether such decisions can be justified rather than simply assuming that the virus will provide sufficient reason. For example, imagine an employer is proposing that employees who are over 55 years of age should be barred from returning to work while younger colleagues are compelled to return. Both groups could argue that they were being less favourably treated because of their age. In order to justify this decision, the employer would need to show that it was a proportionate means of achieving a legitimate aim. The legitimate aims might be to ensure an on-going service to students and a safe system of work.
The question of whether this approach is proportionate would be informed by the latest Public Health England advice on the varying levels of risk of the virus based on age. It would also include a consideration of the business needs and resources of the employer organisation, and the likely impact on individual employees. It is possible that the choice of 55 years of age as the cut-off point would not be proportionate. It might be more proportionate to raise the age limit, or to consider the individual health circumstances of individual employees and take decisions on a case by case basis.
Special considerations for pregnant employees
The EHRC has published specific guidance on pregnancy and maternity during Covid-19, including on protecting pregnant employees from the risks of attending work during the pandemic. The duty on the employer has not changed. Employers must still carry out a risk assessment for all pregnant workers and new mothers. The risk assessment must take into account the job they do, any pre-existing health conditions, the risks of travelling to work and the current social distancing guidance on minimising contact and maintaining a 2m distance from other people.
If the assessment identifies risks which are unacceptable, the employer must change working conditions to mitigate the risk or offer the employee a suitable alternative role on not substantially less favourable terms. For example, this might include arranging working from home or offering a role which has restricted contact with others. If this is not possible, the employee should be suspended on full pay.
Employers who furlough pregnant employees on 80% of pay because of the health and safety risk could face a direct discrimination claim. If employers have furloughed pregnant employees because of safety concerns, they should top up their pay to 100% to avoid this risk.
Redundancy and maternity leave
The EHRC guidance also reminds employers of their duty to offer an employee who is selected for redundancy while on statutory maternity leave any suitable alternative role in priority to other employees.
If an employee has been furloughed because of maternity leave and is then selected for redundancy because she has been on furlough, there is a risk of a sex discrimination claim. If the employee is dismissed for maternity related reasons and is not offered a suitable alternative role, where one exists, there is a further risk of a claim for automatic unfair dismissal.
Employees who are on shared parental leave and adoption leave when selected for redundancy are protected in a similar way.
What should SU employers do now?
Employers should seize this opportunity to gather information about the existing risks and realities for their staff and to begin to formulate plans and policies for change in consultation with key stakeholders.
This should be a broader exercise than simply assessing the current medical risks for particular groups of staff – although this of course will be a vital step to comply with an employer’s health and safety duties. Perhaps now is also the ideal time for employers to carry out gender, ethnicity and/or disability pay gap reviews, and to review and refresh equality policy, training and practice.
Public Health England’s “Beyond the Data” report notes that BAME people feel stigmatised by media reporting on the impact of Covid 19 on their communities, fear victimisation if they raise fears and concerns, and lack trust in healthcare organisations. Employers should therefore consider whether new bespoke risk assessments and policies are required to protect employees who are at increased risk of harm, harassment and discrimination in the current crisis.
The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Alacoque Marvin on firstname.lastname@example.org.