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 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, for example, hybrid working, who to bring back to the physical workplace, who gets extra hours or who is made redundant.
Examples of direct discrimination include, an employer:
- refusing to allow a female employee with children to undertake hybrid working, because of a stereotypical assumption that mothers are not as productive as fathers when working at home
- 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 COVID-19
- using software to monitor their younger staff who work from home in the belief that they are more likely to misuse work time than their older colleagues
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)
- a disabled employee who uses a wheelchair, needs to start and finish work later than normal office hours in order to avoid a busy commute. Their employer imposes hybrid working on the employee against their will so that the employee can work normal office hours when working from home. This will be unlawful discrimination unless the employer can objectively justify it. The employer will be unable to objectively justify this unfavourable treatment if it would be a reasonable adjustment to allow the employee to start and finish work late.
2. Consider the needs of individual employees
- Set up work stations, shifts and home working according to their needs where possible.
- Update risk assessments to consider the disproportionate impact of COVID-19 on specific groups, such as ethnic minorities, pregnant and older workers, and how to mitigate these risks.
- Continue flexible working options implemented during COVID-19 to meet the needs of employees. This could include those with parenting or caring responsibilities, disabled people and those with long-term illnesses, including mental health conditions - do not make assumptions that hybrid working automatically benefits everyone.
Equally, if you 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 are disproportionately impacted by COVID-19 , such as disabled, older or pregnant employees or ethnic minority staff
- 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
- refusing hybrid working for all employees, which could have a detrimental impact on people with mobility issues or mental health conditions. This would be unlawful indirect discrimination unless the employer could objectively justify the decision for it.
- 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 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 – you would be vulnerable to a claim of indirect discrimination if you did not read these to staff with visual impairments
- 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.
Last updated: 01 Sep 2021