Equality Issues

The risks of Covid-19 do not fall equally. Different age groups and those with various underlying conditions are more at risk from the disease. There is also some evidence that different ethnic groups may also be impacted differently. A requirement to return to work – especially when full social distancing in not practicable – therefore has the potential to amount to indirect discrimination, disability discrimination or to trigger the duty to make reasonable adjustments. The best way for an employer to protect itself from such claims is to be scrupulous in following government guidance on creating a covid-secure workplace but also to listen to any individual concerns that employees have and take additional measures when necessary.

There is a particular issue with the protected characteristic of pregnancy and maternity. The employer’s risk assessment must take into account the additional risks that coronavirus presents to pregnant employees. While pregnant women are classified as a vulnerable group in relation to coronavirus, pregnancy has never in itself been a ground for shielding or self-isolating. In most cases there should be nothing preventing a pregnant employee from working provided government guidance is being followed in relation to making the workplace covid-secure. In those rare cases where there is a risk to either to the employee or her unborn child that means that the employee cannot work, then that triggers an obligation either to find suitable alternative work or to suspend the employee on full pay. Pregnant employees should not be placed on sick leave if the workplace cannot be made sufficiently safe for them.

One of the practical difficulties that employees may face in being asked to return to work is that their children are still not being provided with a place in school. While there is no right to paid leave to look after a child, employers should try to work with employees in this situation in order to try to find a solution. This may involve a working from home arrangement or a change in duties or place of work that allows the employee to accommodate their childcare needs. While parental status is not in itself a protected characteristic, employers should be alert to the fact that women are more likely to placed in difficulties as a result of children not being able to attend school. A rigid and unsympathetic approach to the issue therefore creates a risk of indirect discrimination.