I’ve written before about the ticking timebomb I see looming over us in terms of employee relations issues and disputes resulting from furlough. But I’ve been considering in more detail what some of the specific legal vulnerabilities stemming from the Equality Act might actually be that employers should be considering very carefully when making decisions at the moment.
There is all sorts of potential for claims around less favourable treatment because of a protected characteristic when it comes to furlough; when placing on furlough, during furlough and when bringing people back.
Placing on furlough
Part of the problem is that in some instances people want to be furloughed and in others they don’t, so establishing clearly for the purposes of defending a claim that there was no less favourable treatment is going to be challenging. The rush with which most furlough is (quite naturally) taking place is also problematic when it comes to demonstrating fair decision-making.
Key to preventing these claims will be taking a pragmatic approach where at all possible, and communicating well with employees so that you are very clear who is and isn’t happy to be furloughed, and, where the decision is one they are not happy with, doing a brief ‘risk assessment’ as to whether there could be any argument that a protected characteristic was relevant, and ensuring that you have evidence to demonstrate that there was another reason for the decision.
Of course, this isn’t always going to be possible, particularly where you are placing large numbers of employees on furlough simultaneously, however the risk is lower in that case as the large numbers reduce the risk of anyone claiming less favourable treatment. The risk comes where not everyone is furloughed and decisions are having to be made about who to furlough and who to keep at work.
Applying criteria such as choosing more vulnerable workers or those who have caring responsibilities over those who are fit and healthy and have no responsibilities could of course be potentially discriminatory.
‘People who don’t have a disability’ aren’t a protected group, and neither are ‘people who don’t have caring responsibilities’. Although as men are less likely to have caring responsibilities therefore if they are wanting furlough and don’t get it on that basis, they could argue indirect discrimination. Similarly, vulnerable workers are more likely to be older ones, therefore if younger workers would rather be furloughed than come to work, technically this is age discrimination.
However in both these scenarios, there is, in my view plenty of objective justification for those decisions, so a claim wouldn’t get very far.
As furlough continues and employers are continuing to run their businesses on a reduced workforce, decisions will continue to be made about various things impacting the workforce, particularly if furlough extends for some months. You may need to look at alternative workforce structures, altering job duties. Your organisation may be diversifying rapidly in response to the coronavirus and this will have an impact on the roles, responsibilities and tasks being completed, either permanently or temporarily.
Pre-existing performance, conduct or absence issues will need decisions making about them – either to postpone them due to furlough, or to press ahead, and if furlough extends for long periods, your decisions about these may change. Grievances raised prior to furlough or during furlough will need a decision made about whether to investigate and conduct a hearing or whether to postpone it.
In all of these circumstances consideration should be given to potential discrimination and whether a decision made in the light of furlough could be said to constitute less favourable treatment on the grounds of a protected characteristic. When it comes to decisions about employee relations issued that were pre-existing or raised during furlough, consider carefully whether a decision to postpone (or not) could be considered less favourable treatment – if someone has raised a grievance but you are not hearing that grievance because they are on furlough due to their caring responsibilities, that could be a problem. Some employees would want to press on with a grievance hearing, others would prefer to wait and it’s best to make sure the employee is comfortable with whichever scenario you choose.
If you are restructuring or changing roles, don’t let a normal process go out of the window just because you are doing it rapidly in response to coronavirus. Make sure you consider staff currently on furlough when making decisions about roles, responsibilities and structure, just as you would have to if someone were on maternity leave. Excluding them if the reason they are on furlough is because they have caring responsibilities or a disability could leave you vulnerable to a discrimination claim.
Bringing people back from furlough
We are already starting to see some people coming back from furlough, and again, choosing who to bring back and who to leave away from the workplace can be problematic. Some people might be keen to come back – they may be frustrated and feeling isolated at home, or may be suffering financially and want to get back to 100% earnings quickly. Whilst others may be benefiting from time on furlough and might either prefer to continue, or might need to due to shielding or childcare issues.
As with decisions who to furlough in the first place, when you’re deciding who to bring back, consider need, consider preferences, and ensure that there is not a possibility that someone could argue that a decision to either bring them back or leave them off was less favourable, and/or related to a protected characteristic.
Obviously all these decisions are full of potential employee relations issues in terms of real or perceived unfairness, and these niggles and resentments will need managing carefully during and after this period. But reducing vulnerability in respect of the specific potential legal claims needs to be prioritised, however loudly people might be protesting at unfair decisions.