Coronavirus and Discrimination: The balance between protecting employees and avoiding unlawful discrimination claims

On the 1^st May 2020, the Government published its Roadmap to Ease Restrictions and Reopen Ireland's Economy and Society. This sets out five different phases intended to apply between 18^th May and 10^th August 2020, subject to the virus remaining under control between each phase.

Employers are being urged to update safety measures, risk assessments and safety statements to mitigate the risks of COVID-19 as some employees prepare to return to work and to ensure the survival of their business.

When doing so, employers must be mindful of their obligations under the Safety, Health and Welfare at Work Act 2005 and Employment Equality Acts 1998-2015 ("Employment Equality Acts").

Health and Safety

While the risk of contracting coronavirus is not one necessarily created by work, it is certainly a risk that can be increased by normal working practices.

In addition, the World Health Organisation has advised that although the coronavirus infects people of all ages, evidence to date suggests that certain groups of people are at a higher risk of getting severe COVID-19 disease, including older people (i.e. those aged over 60) and those with underlying health conditions (such as cardiovascular disease, diabetes, chronic respiratory disease and cancer). Pregnant women are also considered to be at a higher risk.

Most employers will already be aware of the guidance from the HSE and the government in terms of implementing measures, where possible, to mitigate against the risk of infection in the workplace, including:

• Facilitate employees working from home;
• Eliminating unnecessary face to face interactions or contact i.e. shaking hands in the workplace;
• Staggering start, finish and break times;
• Altering shift patterns to reduce worker numbers at any one time;
• Conducting meetings remotely or by phone;
• Restriction on visitors and where business critical visitors are required to attend site, implement a controlled access process including obtaining appropriate contact details to assist with contact tracing;
• Increased employee/ visitor hygiene practices and making available adequate supply of soap, disposable towels and hand sanitizer;
• Introducing and facilitating appropriate physical distancing measures including keeping distance of 2 metres and rearranging workflow patterns;
• Setting up screens or barriers at checkouts and desks;
• Zoning work areas;
• Encouraging use of card payments;
• Restricting or staggering use of canteen facilities;
• Removing tables and chairs from the canteen and restricting the number of staff per table;
• Regular and thorough cleaning.

While many employers and employees will be taking steps to prepare to re-open within the relevant phases outlined by the Government, in certain cases, notwithstanding the various practical measures that may be implemented, for certain employees, the risk of returning to work at this stage, may still be too great.

For example, where an employee has an underlying health condition - depending on the severity of that condition, it may not possible or advisable for that employee to return to the workplace or the role they previously held in the short term and depending on the medical advice available. 

Discrimination

In addition to obligations under the 2005 Act, employers must also remain conscious of the obligations imposed by the Employment Equality Acts, namely the prohibition on treating employees less favorably (directly or indirectly), than another person based on any of the following nine discriminatory grounds: age, gender, race, religion, disability, family status, civil status, sexual orientation, membership of the traveller community.   It is worth noting that there is no service requirement in order for an employee to bring a claim under the Employment Equality Acts. 

When implementing measures to protect and mitigate against the risks of COVID-19 in the workplace, it is important to consider whether such steps may directly or indirectly be discriminatory.

For example, it may be discriminatory to unreasonably require an older person, a person with an underlying condition which constitutes as disability, or a pregnant woman to attend for work or to unreasonably discipline that person for not attending for work, particularly where they are required to self-isolate under public health guidelines or on the advice of their doctor. 

Separately, when selecting employees for temporary layoff, short time working or redundancy, employers must ensure this is done using fair and objective criteria, having regard to the specific needs of the business and the particular role and not related to the individual employee's personal circumstances, including their age, health condition or pregnancy.

Reasonable Adjustments

Employers should be conscious that altering work arrangements to facilitate vulnerable employees may be necessary to avoid discriminatory practice. Where it is not feasible for high risk employees to work from home, employers should consider whether it is possible to redeploy those employees or adjust their roles and consult with them about any proposals in relation to their role.

Where high risk employees can work from home, they should be facilitated to work from home as effectively as they would normally in the workplace, by providing them with the appropriate technology and supports. An example would be providing a visually impaired employee who uses voice activated software in the office with access to this software in their home.

Where an employee cannot work from home and it is not possible to redeploy them or adjust their role in order to reduce the risk to that employee and the employee indicates that they are uncomfortable returning to work in the circumstances, employers should consider allowing those employees to take unpaid leave or facilitate them in taking annual leave or other forms of statutory leave such as parental leave or carer's leave (as appropriate).

Conclusion 

Employers must remain conscious of the potential discriminatory implications of their decisions during the pandemic. They must also consider the potential disadvantageous effect of measures they introduce on those who are more susceptible to ill health and employees with protected characteristics. In so far as is reasonably possible, employers should be open to changing and adapting work practices in order to accommodate those who are most vulnerable at this point in time.