Coronavirus, Redundancy and Shielding - what should employers look out for?

We have seen an increase in queries relating to what employers can do when they wish to make redundancies, but some of their workforce are shielding.  Employers will need to be cautious when dealing with shielding employees, as it may be that those employees who are advised to stay home because they are shielding, may also be classified as having a disability under the Equality Act 2010 (“EqA 2010”), which in turn may offer them more protection from dismissal.  

The EqA 2010 provides protection against discrimination and other prohibited conduct which conveys to certain listed characteristics which people may possess. Some protections relate specifically to only one of those characteristics. Others provide the same protection in relation to all the characteristics, which are collectively referred to as 'the protected characteristics'.

‘Disability’ is one of these protected characteristics, and we will be looking at how the EqA 2010 may affect redundancy situations where employers wish to make staff redundant.

Disability is defined in the Act as any physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. 

This gives rise to a number of questions:

1.     does the person have an impairment which is either mental or physical?

2.     does the impairment affect the person’s ability to carry out normal day-to-day activities (focusing on what they cannot do or can only do with difficulty), and does it have an adverse effect?

3.     is the adverse effect substantial (ie more than trivial)?

4.     is the adverse effect long-term?

There is case law guidance on the way a tribunal should approach the above questions when determining whether or not a claimant has a disability for the purposes of the Equality Act 2010. People often confuse disability under the EqA 2010 as being registered disabled, this is not the case, you do not need to qualify for a blue parking badge to satisfy the definition under the Act. In fact, contrary to popular conception it is an extremely low threshold to overcome. 

People with certain characteristics or conditions will be deemed to be disabled for the purposes of the Equality Act 2010 without further analysis, for example people whom are certified as blind, or those suffering from cancer. 

Employers therefore firstly need to identify whether the employee in question satisfies the disability element, which may in turn afford them further protection. Being able to identify this early on will mean employers can plan their redundancy procedures and selection criteria in order to avoid any discrimination and likewise any litigation for the same. 

In this article we will explain each element of the definition of a disability before looking at some areas of discrimination which may arise in the redundancy context.

Mental or Physical Impairment:

This is essentially what it says on the tin. However, employers should be careful as this is not the same as a recognised medical illness which has been diagnosed by a GP. The legislation does not require a diagnosis of an illness. It maybe that a few conditions, taken separately do not amount to an impairment, but together they do. A tribunal will look at the aggregate effects of the conditions and may not be bothered about looking at them in isolation. So that’s really important to remember as this is where a lot of employers and indeed lawyers fall short. 

Remember impairment does not mean diagnosis. 

Substantial Adverse Effect:

Whether or not the condition in question has a ‘substantial adverse effect’ must be judged on the impairment without treatment, known as the “deduced effect”. This essentially means that the Tribunal would not trouble itself with the effects a condition whilst the employee is taking medication, but what their condition would be like if they didn’t take the medication. In other words, the substantiality of the condition must be measured by considering whether it is 'likely' that, if the treatment were stopped and/or the corrective measure were taken away, the impairment would have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities. Again, this is another area that employers and lawyers fall into error. 

Moreover the word substantial is also quite misleading as it is now trite law that the effects have to be more than minor or trivial, which also adds for further confusion as these do not appear to sit well with the definition of substantial but there you go, that’s the law. 

Long term:

Seems straight forward needs to be a long time right but wrong - An impairment will be regarded as 'long-term' if it has already lasted, or is likely to last, at least 12 months.

Also, conditions which are currently in abeyance but have in the past had a substantial effect will be treated as continuing to have a substantial effect if the effect is likely to recur. This might, for example, apply to epilepsy, seizure, strokes. 

Moreover, conditions that are not deemed to be disabilities at the time of discrimination but are likely to worsen over a period of time, may count as long. This will require a tribunal looking to the date at which the parties should have been likely to know the impairment would likely be long term. Long winded but you get the point. 

Therefore it is not as black and white as long term suggests and there may occasions where a new condition can slip through the definition. 

Day-to-Day Activities:

There is statutory guidance and guidance in case law on what activities should be taken into account when considering the ambit of the phrase ‘normal day-to-day activities’. I won’t bore you with those now.

This, again, is what it says on the tin! Normal stuff that everyday people do. It does not have to be done by the whole population, but some of it, it doesn’t need to be activities which are work related although it can be. In general terms its things such as walking, cooking, eating, sleeping, putting makeup on, drying hair etc. 

Further, there does not need to be a complete inability to do these things the fact that it may take longer, or causes pain, fatigue and tiredness may be sufficient. Respondents often make assumptions of that fact for instance they saw their employee walk up the stairs and he is now saying he is having difficulty. If it is the case its painful or they have to take medication to do so that may be enough to satisfy the test.

There is very useful guidance on matters to be taken into consideration, which can be found here, which helpfully sets out the test with examples of the type of activities that would be classed as day-to-day and Tribunals more often than not will rely on this particular guidance. 

The basic types of discrimination and other prohibited conduct:

There are several listed potential claims for prohibited conduct relating to disability as follows:

1.     direct discrimination

2.     Discrimination by association

3.     There is also perceived discrimination – which is beyond the ambit of this article. 

4.     indirect discrimination

5.     harassment

6.     victimisation

7.     discrimination arising from disability

8.     (a failure to comply with) the duty to make reasonable adjustments

Now will be looking at the main areas which may arise in the context of redundancy (these may not be present and likewise some areas we haven’t detailed in this article may arise – this is for guidance purposes only);

Direct Disability Discrimination:

Direct disability discrimination by one person against another person occurs where:

1.     A treats B less favourably than A treats or would treat others, and

2.     A does so because of (the protected characteristic of B) ‘disability’ 

With direct discrimination, there is always be a need for a comparison with how another or others would be treated, although the comparator may sometimes be “hypothetical” comparator as opposed to a real person. This often confuses matters, so it is better in our view to try and work with a real comparator than a hypothetical one.

To constitute direct disability discrimination, the less favourable behaviour must be done ‘because of’ disability. The phrase ‘because of’ is what is known as the causation part of the test:

1.     (most clearly) situations where the behaviour is done because of the disability of the victim, but also;

2.     situations where the behaviour is done because of the disability of a third party (for example the disability of the victim’s partner or child); this is known as discrimination by association, and

3.     situations where the discriminator thought someone possessed the relevant characteristic but in fact that was not the case. In those circumstances, this may be perceived disability discrimination.

In light of the current, pandemic it is important for employers to consider these types of claims especially if their staff are shielding or staying home to protect someone who is shielding. If employers treat their staff unfavourably because of shielding this may amount to direct discrimination or alternatively direct discrimination by association. 

Direct discrimination by association has been a very rare type of claim in past years, however, increasingly we are being asked about what employers can do when one of their staff is refusing to come to work because they live with someone who is vulnerable. In those circumstances, it may be best to see whether the employee can work from home, as we of the view any disciplinary action or sanction put in place from the employee’s refusal to return to work to protect a loved one who is shielding may in certain circumstances amount to disability discrimination by association. In that regard it would be advisable for the employer to try and seek as much information from their employees as they can and try and reach some amicable resolution that would allow the employee to remain at home, or alternatively implementing other or further measures that may alleviate the employees concerns.

This may also arise during a redundancy process if for example an employee is struggling to participate in the redundancy process, as they may not be able to attend the office because of shielding, or they may not be able to have a representative with them due to this and consideration should be given to the same in such circumstances. If an employee were to raise an allegation that a refusal to allow them an alternative attendee who they live with as oppose to a work colleague, or there was refusal to allow a virtual consultation; a tribunal may find direct discrimination or discrimination by association.

Furthermore, where employers are considering redundancies it would be advisable to ensure that any selection criteria or pooling is not directly discriminatory against the employee in question. For example, selecting a particular employee because they are shielding and therefore cannot at present come into work. This type of selection may be deemed direct discrimination. 

The duty to make reasonable adjustments

The duty to make reasonable adjustments will apply where a disabled person is put at a substantial disadvantage, in comparison with persons who are not disabled, by:

1.     a 'provision, criterion or practice' applied by or on behalf of the person subject to the duty 

2.     a 'physical feature', or

3.     a failure to provide an 'auxiliary aid'

Where the cause of the substantial disadvantage is a PCP, the duty to make reasonable adjustments requires the employer to take such steps as it is reasonable to have to take to avoid the disadvantage, note should be made of the word reasonable. Employers are not obliged to do everything in their power to remove the disadvantage completely, and any Tribunal would look at costs, resources and time for example when assessing whether such adjustment would be reasonable.  

In the context of redundancy, particular regard should be had to these provisions especially where an employer is considering using sickness absence as one their criteria for instance. A reasonable adjustment for a disabled employee may be that any sickness absence related to their disability should be discounted and any failure to do so may result in liability for failing to implement reasonable adjustments.

In addition, given the current circumstances employers would be well advised to establish whether there are reasonable adjustments they could put in place for the redundancy procedure as those with disabilities may still be advised to shield and therefore attending the office may be out of the question, it may be that virtual consultations would be an adjustment to reduce any disadvantage. 

Discrimination arising from disability

This type of discrimination is unique to the protected characteristic of disability. It is of significance where a disabled person is treated unfavourably because of something arising from, or in consequence of, their disability as oppose to because of the disability itself.

Discrimination arising from disability arises where a person:

1.     treats the disabled person unfavourably because of something arising from, or in consequence of, that disabled person’s disability, and

2.     cannot show that the treatment is a proportionate means of achieving a legitimate aim, and

3.     knew, or could reasonably have been expected to know, that the disabled person had the disability

So, for example, if an employee was disciplined for spelling mistakes in a report, but they have dyslexia, they would be treated unfavourable because of the spelling mistakes which were because of their condition. In those circumstances, such conduct may be deemed discrimination arising from disability. Another example may be, if they were disciplined because they had to take time off work, however the need was to take a period of disability-related absence, again they could argue they have been discriminated against as the unfavourable treatment was because of a consequence of their disability. 

This may play a part in redundancy selection process where an employer is using ability and performance as one of the selection criteria. If an employer were to select an employee for redundancy because they take the longest to draft reports or conduct their work, and this is because of a disability such may be deemed discrimination arising from. 

However, where it is established that the disabled person was treated unfavourably because of something arising from, or in consequence of, their disability, the employer may escape liability if they can show that the treatment was a proportionate means of achieving a legitimate aim. This essentially means is there a reasonable justification for the discriminatory treatment. 

In addition, where an employer does not know, and could not reasonably have been expected to know, that the person they treated unfavourably had the disability they will not be held liable for such discrimination and knowledge is an essential part of the test.

Indirect disability discrimination

Unlike with direct discrimination, indirect discrimination does not involve treating workers differently. This type of discrimination arises when an employer treats all their workers the same, however inadvertently that treatment affects one group of workers adversely compared to another. 

In the context of disability discrimination, an example may be requiring a certain level of attendance before being subjected to disciplinary action. This may put someone who is disabled at a disadvantage as it is more likely they will need time off work because of their condition.  Another may be an employer insisting that workers with a particular job function must hold a full driving licence and be able to drive, which would make it impossible for those whose disability prevented them from driving to do that job.

To give an example of situations which may arise in a redundancy context would be for example requiring all employees to sit a competency test, this may create disadvantages for those employees with anxiety, depression or dyslexia

As with discrimination arising from an employer can escape liability if they can show that the PCP is 'a proportionate means of achieving a legitimate aim', known as the ‘defence’ of justification. To raise this defence, the alleged discriminator must show that the application of the PCP was, in the circumstances, 'a proportionate means of achieving a legitimate aim'. 

As you can see, disability discrimination is very nuanced and understanding the relevant parts may assist employers being able to avoid any allegations of discrimination. It is not always apparent that criteria, methods or processes are discriminatory but an ignorance or lack of understanding will not be a defence to any claim so knowing the law can make all the difference.

We acknowledged that this is an extremely worrying and stressful time for all our readers, and we hope the above assists you. However, If you require any specific or additional legal advice which has not covered in this article above, please get in touch using the contact us form.