New practice: Employers making redundancies as COVID-19 restrictions ease should beware inadvertent discrimination against disabled employees

It is direct disability discrimination if an employer treats an employee with a disability less favourably because of something arising in consequence of the employee’s disability, and the employer:

• cannot show that the treatment is a proportionate means of achieving a legitimate aim;
• knows, or could reasonably be expected to know, that the disabled person has a disability.

It is indirect discrimination if an employer operates a provision, criterion or practice (PCP) such as a work policy which puts a group of employees who share a protected characteristic – such as disability - at a disadvantage compared with people who do not share that characteristic.

The Equality and Human Rights Commission has recommended that employers considering making employees redundant – for example, following the ending of the furlough scheme - should be careful not to discriminate against disabled employees, particularly if their redundancy criteria include the following:

• Amount of unpaid and/or sick leave taken.
• Productivity/output.
• Whether the employee was furloughed.
• Which employees are working part-time.

They should also try to ensure that occupational health assessments conducted at a distance are carried out by video, rather than just by telephone.

Employers are also legally required to make ‘reasonable adjustments’ for disabled employees to alleviate the effect of any disadvantage they suffer. Whether an adjustment is ‘reasonable’ depends on the circumstances, but an employer may have to change how things are done, make physical changes at work or provide equipment or help to the employee.

Employers should therefore also consider the impact of changes they make to their operations and processes as COVID restrictions ease, and the consequent costs, on their legal duty to make reasonable adjustments for disabled employees.

It may be that their new circumstances mean that it is no longer reasonable for an employer to make the same adjustments for a disabled employee – for example, someone shielding or on furlough – as they did before the pandemic. However, an employer should make sure they are on solid legal grounds before they decide not to make such adjustments.

Employers with an employee diagnosed with ‘long COVID’ – continued, COVID-related health issues that persist after they have recovered from COVID itself - should also assess whether those symptoms have caused the employee to become legally disabled. If so, the employer should take care not to directly or indirectly discriminate against them and consider whether to make ‘reasonable adjustments’ to alleviate any disadvantage they may suffer.

Conditions a long COVID sufferer already suffered from before they had COVID may also be relevant as, the two may amount to a disability cumulatively, even if long COVID would not qualify on its own.

Operative date

• Now

Recommendation

• Employers considering redundancies as COVID restrictions ease should beware inadvertently discriminating against disabled employees, whether directly or indirectly, and take care when considering whether they need to make ‘reasonable adjustments’ for them.