Workplace discrimination and harassment in the times of the Coronavirus

Following the outbreak of the Coronavirus pandemic the UK has seen significant changes to how its workforces are operated, how business is conducted and to the law governing many employment rights.

Most employers have reacted with speed, skill and diligence ensuring business can continue to operate as normally as possible and protecting employees’ jobs. These efforts have been greatly assisted following the introduction of the Job Retention Scheme (“JRS”). A guidance note on the JRS can be found here.

Another important consideration for employers is whether there is a risk of direct or indirect discrimination occurring as a result of Coronavirus related workplace changes. Below are a few examples of how such discrimination may occur.

Selection for Furlough leave

Many employers will need to furlough some of their employees whilst keeping others working. Those employees that are furloughed will only receive 80% of their usual wage, subject to a cap of £2,500 per month, unless the employer opts to top up their salary. Furloughed workers will, therefore, be at a disadvantage compared to those kept in work. Prudent employers should devise a process for selecting which employees are to be furloughed. This process could involve a scoring matrix, determining which employees are “essential workers” or creating a rota so employees are taken on and off of furlough status on an equal basis, subject always to being on furlough for at least three weeks. The Government scheme seems to permit this.

Consulting with employees on the need to place them on furlough status will also help in addressing any concerns employees may have and may also highlight a number of employees that wish to volunteer for furlough status, although it is solely the employer’s choice which employees are furloughed. 

Failing to carefully select which employees are furloughed may result in direct or indirect discrimination claims arising. Indirect discrimination could arise where only part-time employees are furloughed, this might dis-proportionately affect women who often work part-time hours due to child care responsibilities or furloughing those about to go on maternity leave

Discrimination and harassment between employees

At times such as these, some employees may be coping with humor and sharing memes or “funny” emails with colleagues. Whilst these might be seen, by some, as workplace banter; employers should consider whether these might constitute bullying or harassment on the grounds, for example, of race, for example inappropriate jokes and memes aimed at a particular national or racial group. In these instances employers should be quick to address these matters which could include banning all coronavirus related workplace banter and/or the sending of Coronavirus jokes and memes in SMS messages or on line, and subjecting those accused of this behavior to the company’s disciplinary process.

Requests for flexible or part-time working

Another discrimination risk could arise where an employer unreasonably refuses a request for amended hours or part time working due to school closures which would predominantly affect women more than men and may result in sex discrimination claims being issued. 

Disability discrimination

There is also a risk of disability discrimination arising where an employer requires an employee to work from home, but fails to make reasonable adjustments to the home workspace, or prioritising and selecting disabled and vulnerable employees for furlough may be a reasonable adjustment in itself.

The above are just a few examples of how discrimination claims could arise as a result of the Coronavirus and furloughing employees. In most cases these issues can be avoided where the employer has a clear policy on acceptable behavior to include workplace banter and bullying, a well considered furlough selection policy and by consulting with all employees on the furlough process.