Reward and possible discrimination during COVID-19

Avoid discrimination when making decisions in response to COVID-19

Despite the extraordinary nature of this situation, employers are still under legal obligations to ensure the decisions made in response to COVID-19 do not directly or indirectly discriminate against employees who hold protected characteristics. The protected characteristics covered by the Equality Act 2010 are:

• Age
• Sex
• Religion or belief
• Gender reassignment
• Pregnancy and maternity
• Race
• Sexual orientation
• Marriage and civil partnership
• Disability

As more and more workplaces are given the all clear to open, employers are faced with difficult decisions such as who to return to the physical workplace, who gets more hours or who is to be made redundant. Employers must not make decisions based on protected characteristics, this would be direct discrimination. Examples of direct discrimination include:

• an employer deciding it will no longer recruit those from Chinese or Italian origins through fear of losing custom, due to completely inappropriate misplaced blame for the outbreak.
• dismissing an employee who has been off work for a long period of time due to long-term ill health and is now shielding.
• a supervisor checking in on a female employee working from home more than a male employee because of an assumption that the woman is more likely to be distracted by childcare.

Indirect discrimination comes when a policy or practice is applied equally to everyone but places someone with a protected characteristic at a disadvantage. Employers should follow inclusive practices to avoid indirect discrimination from occurring. Example of indirect discrimination include:

• a refusal to accept requests for flexible, home or part-time working due to school closures where female employees could be disproportionately affected.
• a refusal to allow employees to continue working at home may disproportionately affect a certain group who need to follow the social distance guidance more carefully, for example disabled, older or pregnant employees.
• reviewing employee’s sales figures from the past two years using the lowest criteria for redundancy, putting women who have been on maternity leave at a disadvantage.

Where there are genuine concerns for any reason including age, infirmity, susceptibility and anxiety the employer must try to resolve these concerns by, for example, offering flexible working, or taking a period of paid leave.

Making fair decisions during the return to work process

All employees have their own set of individual needs, especially in a crisis. Employers should take this into account when making decisions and wherever possible, set up workstations, shifts and homeworking according to individual needs. Employers should also:

• update risk assessments to account for the disproportionate affect of coronavirus on certain groups such as ethnic minorities, elderly and pregnant employees and should plan how to reduce these risks.
• Allow employees to utilise flexible working, this could provide relief for employees with childcare or caring responsibilities and disabled people and those with long-term illnesses.
• Communicate regularly with employees and involve them in decision making processes

Reward and possible discrimination during COVID-19

Feelings of unfairness amongst employees who have kept working whilst others have needed to self-isolate or stop working won’t be uncommon. In attempt to lift morale employers may look to reward those employees for their efforts throughout the pandemic, however, this also needs to be handled carefully in terms of possible discrimination.

For example, an employer rewards their staff for remaining at work with a bonus. This would be direct discrimination of staff who are shielding because they have a health condition and associative discrimination against staff who are furloughed due to caring responsibilities or unwilling to work because a member of their family is shielding.

Instead, employers should:

• regularly communicate how much they value everyone’s contribution. Some staff will be taking on extra responsibilities to make up the gaps, so it’s vital that employers ensure remaining staff feel appreciated and reassure them that this is for a relatively short time.
• consider thanking them for their part in the success of the organisation and helping to protect your people and the business with non-monetary rewards. Non-monetary rewards can be more personal and are a great way to show your employees you appreciate their hard work without the risk of putting others who are not able to work during COVID-19 at a disadvantage.
• celebrate with all employees to show your appreciation with a team lunch or social event (when it is safe to do so!)

Contact us for support on making fair decisions in response to COVID-19 and look out for our forthcoming online training courses on a variety of HR and Employment Law topics.

Further information

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you.