With recent changes to the requirements of lockdown amid the coronavirus pandemic, employers will be faced with a new raft of decisions to make to ensure the protection of both employer and employee. However, for some businesses it may still be weeks or months before employees can return to work and employers continue to face decisions around whether they can keep employees on or have to consider furloughing or redundancy.

Equality body the Equality and Human Rights Commission advises caution around these types of decisions and warns that employers may face a raft of discrimination claims if they unfairly treat, for example, disabled or pregnant members of staff during, or as a result of, the coronavirus crisis.

Organisations are being reminded of their legal responsibilities to make the right, and lawful, decisions around dismissing and furloughing staff in the current climate.

Rebecca Hilsenrath, Chief Executive of the Equality and Human Rights Commission, said:

“We know that these are exceptional times but this must not result in rowing back on people’s rights, nor forgetting those who may be facing more disadvantage than others. Disabled people, pregnant women and new mothers are already facing considerable challenges throughout this crisis and need to be able to feel confident in the security of their livelihoods.”

Employers are having to make quick and difficult decisions. To protect yourself from discrimination claims and make sure you’re doing the best by your employees, think about the equality impacts before making decisions. This will help make sure you are not discriminating and reduce the impact a decision may have on people with protected characteristics.

The Equality and Human Rights Commission offers the following guidance:

1. Ensure the decisions you make, for example who gets extra hours or who is made redundant, are not based on protected characteristics, for example their age, sex, a disability or because they are pregnant.
2. Involve employees in decision-making processes in a way that takes into account their protected characteristics, such as communicating to employees on maternity leave or communicating in accessible ways to disabled employees.
3. Set up working options in a way that does not disadvantage workers with different protected characteristics, such as those in particular age groups, disabled employees, women or pregnant workers. Make sure people selected for home working, reduced hours or furlough are chosen based on business requirements and not on a particular protected characteristic. For example, think about ways disabled people can work from home, either in their current or a different role, or work their usual shifts, through making reasonable adjustments. Where possible, it is best practice to consider what the employee wants to do.

If you’re a public sector employer, you also have requirements under the public sector equality duty to consider the need to avoid discrimination, advance equality of opportunity and foster good relations.

Read the full EHRC guidance here.