Webinar: supporting SMEs impacted by coronavirus

Speakers:

• Deborah Fraser, Director for Regions, CBI (Chair)
• Eugenia Migliori, Principal Policy Advisor, Employment, CBI
• Charlotte Billington, Compliance Manager, Equality and Human Rights Commission
• Matthew Smith, Solicitor, Legal Directorate, Equality and Human Rights Commission
• Ian Deakin, Senior Associate, Browne Jacobson, LLP

Overview:

Eugenia:

• It’s important to think about equality as we build back better – because we know there is a danger that progress on diversity could slow down after the pandemic.
• As the government prepares to move to the next phase, the equalities agenda must be at the forefront of their minds.
• The CBI is supporting business to think about these issues and to take action.
• We must build on the growing consensus that the recovery does not mean going back to where things were, but where they need to be.

Charlotte:

• We support employers to meet their obligations under the Equality Act. We want to make their obligations under the Act as simple as possible.
• Covid-19 has affected some groups more than others, and it has also made it harder than ever to ‘do the right thing’.
• However, employers are still under legal obligations under the Equality Act, and there are real risks to employers who do not actively check they are not discriminating. The decisions that are made now will impact equality and the advancement that the UK is making.

Matthew:

• Employers’ obligations under the Equality Act are to prevent:
  • Direct discrimination – treating someone less favourably because of a protected characteristic
  • Indirect discrimination – applying a policy equally to all employees, but it has an impact on a protected group
  • Discrimination arising from disability – something that flows from the disability, such as sickness absence.
• Key principles:
  • Do not base decisions solely on someone’s characteristic, even if the policy is rooted in good intentions. Any blanket policy, regardless of the good intentions, is direct discrimination (e.g. we will not hire disabled people because they are at risk)
  • Consider the needs of your employees – work with them and take into account their needs
  • Communicate in an open and honest way with staff. Think of ways to create feedback loops so you can consider everyone’s individual needs. Be inclusive in how you communicate and seek feedback
  • Making sure you are recording and tracking the impact of decisions – as this will help to identify any indirect discrimination. Having a record will also help you to justify any decisions taken.

Ian:

• Since the initial announcement, the JRS scheme has gone from being a simple (if extraordinary) scheme to pay wages to something that has been revised more than a dozen times and made complex.
• Two significant changes:
  • ‘Turning off the tap’ – As we move from the initial scheme, the contributions from government will be gradually turned off over the summer as employers become more liable for matching contributions to the scheme
  • Return to work – Employers will be eligible to bring furloughed staff back more flexibly.

Key questions we answered:

1. How do you avoid ‘well intentioned’ discrimination?

• It’s very important to not take decisions based purely on protected characteristics.
• The policies and procedures you have in place need to be risk assessed to see if they have an impact on staff with protected characteristics.

2. What are my obligations to colleagues who have been asked to shield/self-isolate?

• This is a very difficult issue for employers to juggle.
• This does sit alongside the duty not to discriminate, and many long-term health conditions (e.g. diabetes) class as a disability. You need to look at what things can be done to consider their increased risk. Less contact with others? The public? Home working?

3. Top tips for business to ‘get ahead of the curve’?

• A good starting place is to assess the impact on the workforce of any suggested policies. Decisions need to be based on sound evidence. Talk to your staff.
• Show you have worked with employees, taken into account their needs, and evidenced your decisions.

4. How do we deal with increasing requests for flexible/remote working?

• As a nation we have become more accustomed to it.
• An outright refusal (depending on who is asking) could be discrimination. The employer needs to show they have considered the requests and provided a sensible reason for refusing it.
• The level of remote working due to Covid-19 has given lots of evidence that home working works. Employees have a track record of three months home working, so if they can demonstrate continued productivity/activity you have less of a case for refusing it.
• Not all HAVE to be agreed, but the volume is likely to go up significantly.

5. Are we expecting a high volume of tribunal cases due to ‘equality impacts’?

• Likely yes, and many on redundancy.
• Employees not wanting to return to work can be a challenge. Sections 44 and 100 of the Equality Act say it is unlawful to dismiss someone if that employee says they are worried about a ‘serious and imminent danger’ of returning to work.
• Many issues will be raised in tribunal claims, so it’s on the employer to make sure you have done everything you can to protect employees and communicate with them. It’s important to make sure all risk assessments are in place, and you have communicated (with evidence) why the workplace is safe to return to.