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In these uncertain and challenging times, you may find yourself unwittingly overlooking equality and discrimination issues which arise out of the coronavirus pandemic.

However, as the Government guidance has made clear, equality and discrimination laws continue to apply in the usual way; and so, it is important to be mindful of these issues when you are making decisions.

It is anticipated that there will be an increase in equality and discrimination claims in light of coronavirus, and due to the unprecedented nature of the situation we find ourselves in, it is predicted that these claims will be put forward in more unusual and inventive ways.

The purpose of this article is not to provide a comprehensive list of all the equality and discrimination issues which may arise, but rather to highlight a few key areas to be aware of to try to avoid equality and discrimination litigation being taken against you as an employer.

Disability discrimination

The first key area to be aware of is disability discrimination.

You will most likely be aware that the Government has identified two main categories of individuals who it considers are at increased risk if they were to contract COVID-19. These are:

  • those that are considered ‘vulnerable’/high risk; and
  • those that are considered ‘clinically extremely vulnerable’/very high risk and have been strongly advised to shield themselves.

A list of those that are classed as high risk and very high risk can be seen on the NHS website here.

For instance, individuals with chronic obstructive pulmonary disease (COPD), heart disease and diabetes have been identified in the ‘high risk’ category. Individuals that have had an organ transplant, receiving treatment for cancer or suffer with severe lung conditions have been identified in the ‘very high risk’ category.

Under the Equality Act 2010, an individual will be classed as disabled if it is possible to answer ‘yes’ to all the following questions:

  1. Do they have a physical or mental impairment?
  2. Does that impairment an adverse effect on their ability to carry out normal day-to-day activities (i.e. getting washed and dressed, going shopping and walking and travelling)?
  3. Is that effect substantial (i.e. more than minor or trivial)?
  4. Is that effect long-term (i.e. has lasted, or is likely to last 12 months or more)?

In order to answer these questions, it is important to discount any benefit that medication brings to the individual.

Some conditions, such as cancer, HIV and multiple sclerosis are classed as ‘deemed disabilities’. People with these conditions will automatically be deemed disabled.

It is likely that a significant number of other people in both the high risk, and particularly the very high-risk categories are likely to be classed as disabled for the purposes of employment law; however, this will not automatically be the case, so it is important to consider each case separately.

You may well find that those individuals that are classed as high-risk and/or very high risk have concerns about attending work during the coronavirus pandemic due to the potentially serious implications it may have if they were to contract the virus. These concerns should, of course, be taken seriously and each assessed on their own merits.

Where individuals have concerns because they fall into either the high-risk or very high-risk categories, it would be prudent to exercise caution before taking any action which may put those people at a detriment. For example, dismissing their concerns off-hand or putting them through a disciplinary process in the event they refused to work.

In order to defeat a discrimination claim, you would have to be able to show that your actions were a ‘proportionate means of achieving a legitimate aim’. A Tribunal would weigh up the discriminatory treatment of the employee against the impact on the employer. In the current pandemic, we would suggest that the employer would have to show an extremely good reason if they are going to discount an employee’s concerns.

Associative discrimination

Discrimination by association describes the situation where an individual can bring a discrimination claim based, not on a characteristic of their own, but a characteristic of another person.  

During the coronavirus pandemic, a claim for associative discrimination may arise. For example, a wife is living with her husband, who is having chemotherapy as a treatment for cancer. The husband has a ‘deemed’ disability as he has cancer, and he is in the very high-risk category, meaning that he should shield. The wife refuses to come into work because she is worried about taking the virus home and infecting her husband, and her employer subjects her to a disciplinary procedure. The detriment that the wife suffers may amount to disability discrimination even though she is not herself disabled.

Age discrimination

Generally speaking, younger individuals are more likely to be ‘fit and healthy’ and therefore more able to attend work during the pandemic. However, this brings with it obvious age discrimination points, as an employer may be minded to furlough those that are older over those that are younger.

The question, therefore, arises as to how an employer should select employees for furlough?

An employer could initially ask for volunteers; however, in some cases, an employer may receive more volunteers than it wants to furlough.  

The procedure an employer follows in deciding which employees to furlough may depend on its current financial situation. If the employer needs to urgently furlough employees or makes them redundant to be able to continue to trade, a limited selection procedure carried out on an urgent basis is likely to be acceptable. However, where an employer does not have any immediate financial concerns, it is expected to be more reasonable for it to follow a more comprehensive procedure. 

Employers could draw up a matrix of objective criteria in a similar way to redundancy scoring. It may also be useful to have an ‘objectives’ section at the start of the matrix, which identifies the employer’s aims. For instance, it is likely to be legitimate that the employer’s aim is first to protect those that the Government has designated as vulnerable or extremely vulnerable over those that are not.

Employers should ensure that their decisions on who to furlough are not based on discriminatory criteria, except where such discrimination is likely to be justified. For example, it will be directly discriminatory for employers to use age as a criterion and select employees over 70. However, this could be justified as a proportionate means of achieving the legitimate aim of protecting the health and safety of vulnerable employees as identified in government guidance.

Summary

The current situation is extremely challenging, and there are many different considerations for employers. 

With that said, it is prudent to ensure that you are thinking about equality and discrimination laws when you are making decisions at this challenging time.

Tailored legal advice should always be taken before taking any steps, especially in such a developing and everchanging public health crisis. Whilst the Government is striving to issue guidance regularly, it must be remembered that it is guidance only and not legal advice on particular circumstances.

Further guidance for employers on equality and discrimination issues in response to coronavirus (COVID-19) has been published by Acas and the Equality and Human Rights Commission.

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