Coronavirus and Unlawful Discrimination

During the current pandemic and this time of uncertainty, the Government guidance is constantly being updated. However, it is important that employers do not lose sight of the unchanged and fundamental employment rights that employees continue to have during this pandemic. In particular, an employee’s protection from unlawful discrimination under the Equality Act 2010, which details several protected characteristics, one of which is disability that this blog is focused on.

It is very possible that individuals in the groups identified in the Government guidance (or a majority of them) may meet the definition of disability. To clarify, the Government has published two categories of vulnerable groups, which I would encourage employers to familiarise themselves with those who are:

1. At an increased risk of severe illness (Social Distancing Guidance)
2. Clinically extremely vulnerable (Shielding Guidance).

It is important to note that a medical diagnosis is not necessarily needed to constitute a disability. Instead, there is a test where an individual must show the following to qualify for protection:

1. They suffer from a physical or mental impairment which has:

a. A long term effect (has lasted or is likely to last 12 months);

b. A substantial and adverse impact on their ability to carry out normal day to day activities (i.e. normal activities, such as getting out of bed, household chores).

The employer’s knowledge is also required, however an employee does not need to specifically inform their employer that they consider themselves disabled. A tribunal will look at whether a reasonable employer ought to have been aware i.e. did the employee show signs that a reasonable employer would be expected to identify (time off sick, change in behaviour, appearing stressed).

If the employee can meet the test, they are then provided with several rights including protection from the following types of disability discrimination:

1. Direct discrimination (subject to unfavourable treatment because of their disability i.e. selected for redundancy because of their disability).
2. Indirect discrimination (i.e. a delayed decision (such as measures to work from home) affects all staff but adversely affects a group of individuals suffering with a disability, or a requirement to continue travelling to and attend work).
3. Indirect associative discrimination (i.e. an employee lives with a person who meets the definition of disabled and they are treated less favourably as a result).
4. Discrimination arising from a disability (i.e. an employee self-isolates due to their disability and ther employer takes steps because of something arising in consequence of the disability i.e. decision to self-isolate).
5. Harassment (being made to feel humiliated, degraded or offended as a result of their illness).
6. Victimisation (i.e. being treated badly for raising complaints about discrimination).
7. Failure to make reasonable adjustments (the purpose of reasonable adjustments is to take steps to keep an employee in work or return to work i.e. not facilitating a disabled person’s request to work from home, when their job is suitable for remote working, may give rise to a claim).

Please note, if another employee is carrying out the discriminatory acts, an employer will be vicariously liable for their actions if they were carried out in the course of their employment. An employer must show they have taken reasonable steps to prevent the behaviour.

Employers must be mindful of the potential risks of these claims and I would advise take the following steps:

1. Consider whether you have employees who may meet the definition of disabled. As a starting point, do they have a condition you are aware of, are they shielding or self-isolating?
2. Has the business made or considering to make any decisions that may adversely affect those with a disability? For example, where there is redundancy process, consider whether the selection process may have been discriminatory.
3. If you do identify potentially disabled employees, consider whether they may require any reasonable adjustments i.e. flexible working, working from home, taking holiday or unpaid leave.
4. If you are unsure, consider seeking medical advice from the employee’s GP or Occupational Health to determine whether the employee is disabled.

ACAS has also published guidance on how employers can maintain good practice during this pandemic.

Perfect Clean have also put together an article exploring actionable deep cleaning and disinfecting tips for offices to protect employees and visitor’s safety and well-being. You can read it here.

If you have any queries, please do not hesitate to contact one of our experienced Employment Lawyers on 01202 525333 for further advice.