Avoiding Disability Discrimination Claims During the COVID-19 Pandemic

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Rachel Jones , 22nd April 2020

Written by;

Fflur Jones, Partner and Head of Employment, Darwin Gray

For most businesses and organisations, the COVID-19 pandemic has had a dramatic effect on the way we work. Overnight, employees have been suddenly required to work from home, or remotely, in circumstances where their remote set up may be far from ideal. The length of time the change shall be in effect is at present unknown. In the immediate confusion caused by lockdown, many of our established working practices have been challenged and changed, perhaps forever.

Subject to the provisions of the UK government’s furlough provisions, as included in the Coronavirus Job Retention Scheme, it is important for employers to note that all employees’ employment rights remain in force, including the right not to suffer discrimination on the grounds of their disability. Employers should make sure to act in accordance with these rights during the current crisis, and take reasonable actions to avoid disability discrimination claims arising.

Some members of staff within an organisation may already have an ‘underlying medical condition’ that matches the definition of disability in the Equality Act, either due to a physical or a mental impairment. Others may well go on to develop such a medical condition due to the stress the current crisis and their changed working practices, and potentially the financial strain is having upon them.

Consider taking the following actions as part of your duty of care to your employees:

Review the reasonable adjustments you have in place for disabled employees. Check whether they are still being implemented and how or whether they can be adapted to suit remote communication methods. These reviews should be done regularly regardless of whether staff are going out to work or remote working. Diarise to review perhaps every two to three weeks.
Managers should remember to try and communicate with staff as often as possible and not just “leave them to it”. If you have managers who are on sickness absence or furlough leave, it is important to appoint someone else to cover any members of their teams who are still working.
Emails and instant messaging are useful, but should not be relied on as your only means of communication. Written messages can be easily misinterpreted and become a source of anxiety. In addition, employees may be less likely to disclose concerns over email than they would during a one-to-one phone conversation or video call. If you are a manager who would usually speak to your team about their work on a daily basis in the workplace, emails should not become a replacement for this.
Keep in touch with furloughed staff. Employers should be careful to avoid speaking to furloughed staff about work issues unless absolutely necessary, as staff must not be permitted to work while on furlough. However, it is still important to check in with them on a regular basis – either weekly or fortnightly will often be appropriate, but it may be a “reasonable adjustment” for disabled employees to agree less or more frequent contact with them. In addition, in order to minimise anxiety staff should always be kept updated about issues such as their pay and the duration of their furlough leave.
Do you have Mental Health First Aiders or Mental Health Champions? If you do, now is the time to use them. Consider allocating them the task of checking in on staff on a regular basis to speak to them about any stress they are experiencing. If you don’t have first aiders or if you have too many staff for your existing first aiders to cover, perhaps select some of your managers to take on a similar role (and offering them online training to help them with this).
Your usual policies and procedures should remain in place during the current crisis, even if they can’t be implemented through face-to-face meetings and hearings. Staff should be free to raise grievances (which can be dealt with even if they are on furlough leave) about their concerns. In addition, if you have any staff who are contributing to others’ anxiety through inappropriate communications or social media content, these issues can also be dealt with through your normal rules and policies.