Grouping people by protected characteristics could be risky for employers
The requirement to make reasonable adjustments for those with disability is a well-recognised one in HR. But the pandemic has thrown up a host of other risk factors and potential avenues for discrimination that weren’t there before. Bela Gor asks whether equality legislation is still fit for purpose during Covid-19.
In recent months, we have all had to change the way we work in response to the health risk posed by the pandemic.
With Covid-19 cases rising sharply and a large proportion of the UK currently in lockdown, we will need to continue adapting our ways of working. Whilst we are all experiencing the pandemic, how we are affected depends on our individual circumstances.
Evidence shows that our age, gender, race and general health are all factors which make us more or less vulnerable to Covid-19. Yet, as the law stands, an employer only has a duty to make reasonable adjustments if those adjustments are required on the grounds of disability.
Not all disabled people are at greater risk from Covid-19, however, and many resent public messaging which suggests vulnerability by virtue of being disabled. There is also concern that being deemed as ‘vulnerable’ could lead to greater discrimination and job losses for disabled people.
With the world of work changing at pace, and perhaps forever, we are left questioning whether equality legislation is still fit for purpose in 2020. This subject was discussed at Business Disability Forum’s conference earlier this month.
The Equality Act 2010
The Equality Act protects people by protected characteristic – gender, race, age, religion or belief, disability etc. But it does not protect people for being a combination of protected and other characteristics.
This was an issue pre-pandemic but Covid-19 has brought sharply into focus that some people are more affected than others and may not, legally, have the protection they need.
There are categories of people who are more vulnerable to experiencing the more serious symptoms of Covid-19 but they are not all disabled.
Conversely, not every disabled person is more vulnerable to the virus and so in a high-risk category. However, people who are in the vulnerable category might need adjustments just as much as people who are disabled but not vulnerable.
Let us not forget too the growing evidence of people suffering from Long Covid. It is too soon to say with certainty, but it is looking likely that someone with Long Covid might be disabled under the Equality Act. Employers need to remember this as this pandemic progresses.
Now, let us consider a black or Asian male, in his sixties, who is overweight, possibly obese, and has Type 2 diabetes. Is he more vulnerable to Covid-19? Yes. Age is the biggest risk factor followed by gender (being male), race, weight and underlying health conditions. Is he disabled? Perhaps because of the diabetes but it is not a given. It will depend on the effect of the diabetes on him.
Under the Equality Act 2010, an employer only has to make reasonable adjustments for this person if he has a disability. But I would argue that they should be made anyway, as evidence suggests that he is likely to be more affected by the pandemic due to his age, gender, race and weight, as well as diabetes.
Contrast this person with a white female in her twenties. She is slim, fit and an athlete. And she is a wheelchair user. Is she disabled? Yes. Is she more vulnerable to Covid-19? No. She is disabled and therefore is protected by the Equality Act and entitled to reasonable adjustments under the law.
The risk for employers
As can be seen from these examples, there is a great risk for employers in grouping people by protected characteristics.
The law has always required employers to consider people on a case by case basis. This has not changed. But in recent months, as employers like everyone else, have been reacting to fast changing events, there has been greater temptation to conduct group risk assessments.
While these are often carried out with the best of intentions, there is a real concern that these will lead to discrimination and down the line to court and tribunal cases.
Group risk assessments are based on assumptions about the existence or absence of disability and what this means for the individual in terms of their preferences and needs.
What is reasonable?
If the female, mentioned earlier, wants to return to the office it will not be a reasonable adjustment to insist that she remains at home – for her own safety. An adjustment is not reasonable if it is imposed on someone without their consent.
Employers will, however, need to think about how she will access everything she needs from kettle to the printer without assistance. One of the biggest changes for disabled people during this pandemic has been the sudden removal of adjustments which involved other people touching or assisting them.
The male example, however, might not be so willing to return. Although, legally, you may not have to make reasonable adjustments for him that does not mean he might not have other claims.
He could bring discrimination claims on the grounds of race, gender and age as well as disability. But not a combination of these. That does not mean, however, that he might not have alternative claims, such as for personal injury, if his employer insists on him returning to work without safety measures implemented and enforced.
The above examples illustrate that we need to be thinking beyond the requirements of current legislation when it comes to reasonable adjustments. Adjustments need to be about looking after the wellbeing and productivity of staff. To do that we need to consult with all colleagues about what they want and need and be ready to make reasonable adjustments for everyone.