It is important that you consider our guidance when making decisions around redundancies and retaining staff.
Making redundancy decisions based on the following criteria could increase the risk of discrimination claims and should be considered carefully:
- unpaid leave days taken
- productivity or output during the pandemic
- sick leave taken during the pandemic
- who has previously been furloughed
- who is working part-time
This could indirectly discriminate against specific groups who may have taken time off of work due to coronavirus (COVID-19), for example women who have disproportionately taken on caring responsibilities or disabled employees who had to shield.
You should consider whether to adjust the criteria, for example by considering productivity in the period prior to coronavirus.
Review decisions before informing staff to check protected groups have not been disproportionately selected and if they have, take action to correct it.
As an employer, you are still under legal obligations to ensure the decisions you make in response to coronavirus (COVID-19) do not directly or indirectly discriminate against employees with protected characteristics.
1. Do not make decisions based on protected characteristics
Protected characteristics are:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
This includes decisions about returning to work, for example who to bring back to the physical workplace, who gets extra hours or who is made redundant.
This would be direct discrimination. Examples include:
- a manager asking a female employee working from home to check in with him more than a male employee, because of an assumption that the woman is more likely to be distracted by her children
- an employer deciding it will no longer recruit candidates from any ethnic minority to front-line roles after finding out some ethnic minorities are disproportionately impacted by coronavirus (COVID-19)
- employees over 60 not being informed that the physical workplace is reopening, as you do not want them to return because of the potential risk - the employer should consider less discriminatory ways of protecting older employees
Discrimination arising from a disability
Disabled employees must not be treated unfavourably because of something connected to their disability, where you cannot show that it’s objectively justified. This applies if you know or could reasonably have been expected to know that the person is a disabled person. Examples include:
- an employer rejecting a late appeal against redundancy because an employee's learning disability meant they needed extra help - the employee has been treated unfavourably because of something arising from their disability (rather than because of the disability itself)
- an employer dismissing an employee who has been off work for a long period of time due to long-term ill heath and is now shielding - the employer must be able to objectively justify any dismissal, including why reasonable adjustments could not be made
- an employer making redundancies is influenced by discriminatory assumptions about a disabled employee’s performance, such as them taking more absence leave than non-disabled employees in the future - the employer should instead use objective selection criteria and ask at least two managers to independently score each employee to avoid discriminatory bias
2. Take into account the needs of individual employees
- Set up work stations, shifts and home working according to their needs.
- Update risk assessments to consider the disproportionate impact of coronavirus (COVID-19) on specific groups, such as ethnic minorities, pregnant and older workers, and how to mitigate these risks.
- Implement or expand flexible working options to meet the needs of employees. This could include those with parenting or caring responsibilities who may have lost their childcare arrangements. It could also include disabled people and those with long-term illnesses, including mental health conditions - do not make assumptions that remote working automatically benefits everyone.
If you equally apply a policy or practice to everyone, you may place someone with a particular characteristic at a disadvantage. This would be indirect discrimination, unless it is objectively justified or you have a real need to apply the policy and do so in a way that is necessary and appropriate. Examples include:
- requiring all employees to continue to work in front-line, key worker roles - this would have a greater impact on those who need to self-isolate or follow the social distancing guidance more strictly, such as disabled, older or pregnant employees or ethnic minority staff due to the disproportionate impact of coronavirus (COVID-19)
- an employer thinking a fair approach to redundancies would be to review employees’ sales figures from the past two years, using the lowest as criteria for redundancy - they realise after consulting staff this will disadvantage women who have been on maternity leave, which would be indirect sex discrimination
- an employer taking over communal staff facilities to create extra work space for social distancing, disadvantaging employees with religious beliefs who lose prayer spaces - this can only be justified if use of these rooms is the only way the employer can ensure employee safety
3) Communicate with employees
- Involve them in decision making processes.
- Pay attention to specific communication needs, such as those on maternity leave, disabled employees or ethnic minority staff who may want to raise concerns about the disproportionate impact of coronavirus (COVID-19).
- Have conversations about updated risk assessments, current caring responsibilities and arrangements, wellbeing, mental health and employees’ ability to carry out their job.
Examples of effective communication include:
- an employer considering how to provide safety information to all staff, using posters and ensuring they are read to staff with visual impairments - if they had not, they would have been vulnerable to a claim of indirect discrimination
- an employer carrying out a risk assessment for employees returning to the physical workplace talks to different employee groups and trade union reps to hear different concerns and mitigate any negative impacts
4. Record your decisions and track their impact
Useful question to ask include:
- who has been placed on furlough?
- who has been made redundant?
- who has been asked to return to the workplace?
- who has gone on unpaid leave?
- how many reasonable adjustment requests have been approved?
- who has been offered flexible working patterns?
This will help ensure you’re not discriminating against any specific group and may help prove that your decisions are objectively justified.
If you’re a public sector employer, you also have requirements under the public sector equality duty to consider the need to avoid discrimination, advance equality of opportunity and foster good relations. Conducting an equality impact assessment should help you to meet these obligations
Why this is important
There are lots of reasons why following inclusive practices makes good business sense, including:
- three quarters of employers told us it attracts highly-skilled talent and increases staff commitment and retention
- it builds organisational resilience and reputation as the future of work looks likely to change
- it removes barriers to employment often faced by those with protected characteristics and reduces absence and related costs
- employers with existing equality action plans have been able to respond quickly and positively to new challenges
If you make decisions that discriminate against an employee, you may be at risk of:
- having a claim brought against you at an employment tribunal
- costly compensation fees
- reputational damage
For more information, please see our full guidance on dealing with discrimination as an employer.
We are interested in hearing from employers and employees about good practice in managing non-discriminatory decision making processes during the coronavirus (COVID-19) pandemic. Please contact firstname.lastname@example.org to share your stories.
Last updated: 26 Jan 2021