Coronavirus - Disparate impact by reason of disability - UK

• United Kingdom

• Coronavirus - Workforce issues
• Employment law

26-11-2020

Following on from our earlier briefings in this series considering COVID-19 pandemic and diversity issues - Coronavirus: Disparate impact across ethnic backgrounds and Coronavirus - Disparate gender impact - in this third briefing we consider the impact of the pandemic on individuals with disabilities or other physical or mental impairments.

How far should employers be taking account of disability in their pandemic response and what practically can they do to address or minimise any disparate impact within the workplace?

With an estimated 13.7 million disabled people in Great Britain according to government figures and analysis from the Office for National Statistics (ONS) estimating that disabled people “made up almost 6 in 10 (59%) of all deaths involving COVID-19” in the period 2 March 2020 to 14 July 2020, disability is an area where the evidence indicates a clear disparate pandemic impact.

Following concerns raised in April 2020 by the All-Party Parliamentary Group for Disability at “the treatment of persons with disabilities during the coronavirus”, the government confirmed in July 2020 that it remained committed to publishing a national strategy for disabled people. In its COVID-19 Winter Plan published this week, the government acknowledged that disabled individuals are one of the groups of individuals that have been disproportionality impacted by the pandemic and that it is “considering what further action is needed to protect disabled people”. As such, the issue remains on the government agenda and further initiatives seem likely.

Pandemic response – addressing health-related risk

Health conditions are just one of the aspects that should be addressed in workplace risk assessments, whether work is undertaken from home or on-site. Such assessments should ensure that measures to address risk areas are effectively identified, taking account of individual circumstances and supporting those who are at higher risk.

Those with certain health conditions such as chronic (long-term) mild to moderate respiratory disease, chronic heart, liver or kidney disease, diabetes, and chronic neurological conditions are included within those identified as being in “higher-risk groups” in the government COVID-19 secure guidance, together with those that are “clinically extremely vulnerable”. This latter category includes, for example, those with specific cancers and certain severe respiratory conditions, organ transplant recipients, adults with Down’s syndrome and those with certain severe respiratory conditions.

Although everyone who can effectively work from home must currently do so, the government guidance states that if those that fall into the category of clinically extremely vulnerable cannot work from home, “they are advised not to go to work and may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA)”.

For those businesses continuing to operate at this time, whether as a business permitted to remain open or with workers able to effectively work from home, there is however often a dichotomy between seeking to address health-related risk of workers continuing to work and ensuring that such workers do not feel that they are being unfairly treated through the measures applied to do so. An over-zealous strategy can result in workers feeling marginalised and discourage workers from disclosing medical conditions. Not doing enough can result in legal risk and a feeling of a lack of understanding or concern.

To address that tension and particularly given the different needs of those suffering from health conditions, not only should workers be consulted on the general pandemic approach and involved in the development of roll-out strategies, but there should also be flexibility within that approach to adapt it to take account of personal circumstances and needs.

Ensuring that there are effective mechanisms in place to ensure ongoing dialogue beyond risk assessments and roll-out of measures is also important. Where workers have been absent from work, the effective use of return to work interviews can assist in ensuring individual needs are considered and addressed. Further, ensuring that, whether working on-site, virtually or absent from work, there is regular opportunity to catch-up with managers and appropriate mechanisms in place to address concerns.

Is COVID-19 a disability?

In most cases, it would seem very unlikely that a person who has tested positive for COVID-19 would be deemed disabled within the meaning of the Equality Act 2010 on the basis of that diagnosis alone. Based on the statutory definition and the most recent caselaw, it is unlikely that the statutory test would be met where any long-term effect is not anticipated at the time of any alleged discriminatory act.

However, with an increasing body of evidence supporting longer-term effects in some patients, the position should continue to be monitored. There is currently no single diagnostic category for those suffering from the long-term effects of COVID-19, however a report by NHS England in June 2020 estimated that 45% of those admitted to hospitals in England with COVID-19 would “need ongoing support”. Further, a report by the National Institute for Health Research in October 2020 found that “it is becoming clear that, for some people, COVID-19 infection is a long term illness”.

Regardless of whether those suffering from the effects of COVID-19 meet the statutory definition, employers should adopt a supportive approach. Therefore, ensuring that meetings take place with employees returning to work after a period of sick leave, to check that they are well enough to return to work and identify any workplace adjustment that may be needed. Further, that there is a clear point of contact for them in the event that they struggle to reintegrate into the workplace, either as a result of any ongoing medical issues or due to organisational factors.

Coronavirus: reimagining the physical or virtual workplace

Individuals with health conditions often face challenges in the workplace. If not carefully managed and solutions put in place, the pandemic has the potential to raise additional issues. As highlighted above, some individuals may have physical health conditions that make them more susceptible to contracting COVID-19 or to suffering more significant health impact if they are infected. Others may have mental health conditions that are precipitated or exacerbated by the pandemic, including through increased levels of anxiety and stress.

Although working from home has enabled many disabled workers to thrive, it also has the potential to create additional challenges and barriers. Physical challenges can exist around the remote working set-up, as well as less obvious challenges, for example for workers with autism and dyslexia, who may in some cases be challenged by the increased use of communication tools such as emails and messaging.

Whether adjusting duties, location of work or putting in place additional protections to manage health-related risk, such as additional personal protective equipment, it’s clear that a flexible approach tailored to the particular needs of employees is key. To be effective, that approach should also be intersectionality-informed, thereby taking into account multiple factors that may result in a worker being disadvantaged in the workplace, often demanding a wider approach than limited to a particular health condition alone.

Where a workplace measure could be made to assist a disabled employee, there’s often a balancing act between a number of factors to determine whether the measure is reasonable, including the extent to which the measure will ameliorate any disadvantage and whether the measure is practicable. Measures to ensure social distancing such as one-way systems in shared spaces may have a general workforce benefit, but disadvantage individual wheelchair users or workers with visual impairments. Similarly, the use of face-coverings within the workplace may disadvantage workers with hearing impairments and those who use visual cues such as facial expressions and lip reading. Not making any adjustment is unlikely to be appropriate, but there are likely to be ways in which the measure can be adjusted or combined with other measures to alleviate the disadvantage and balance the interests of all.

Wider considerations for disabled workers

Disabled workers may also be disproportionately impacted through disruptions to the services they rely on. A report by the ONS in July 2020 reported “13% of disabled people reported being most concerned about access to healthcare and treatment” and that “around one-quarter (25%) of disabled people who were receiving medical care before the coronavirus pandemic indicated they were currently receiving treatment for only some of their conditions”. Ensuring support for workers to help them access necessary healthcare, as well as making them aware of the availability of any employer occupational health services or private medical insurance that may give other avenues to access healthcare services, should not be overlooked. Further, ensuring that managers maintain contact and understand the medical situation and difficulties being experienced will be invaluable in fairly and proactively managing workers.

The adjustment of the physical workplace, whether on-site or at home, also presents the opportunity to consider the wider aspects of supporting disabled employees. Creating organisational values around the importance of respecting differences, raising awareness of certain conditions, providing the tools to enable workers to stay connected wherever they are based, extending existing buddying/mentoring initiatives beyond the traditional workplace and workplace innovation programmes designed to generate new ideas and methods that better meet the needs of disabled workers, are just some of the methods being utilised by companies in this respect.

Disparate impact by reason of disability: summary

The pandemic numbers are stark on both the medical and economic fronts, and those numbers continue to be at the forefront of media attention and reports. The disparate impact of the pandemic on individuals with disabilities or other physical or mental impairments is less visible, however can be a significant issue in the workplace that should not be overlooked. Further, with a national strategy for protecting the disabled against inequalities remaining on the government agenda, the issue is likely to be catapulted back into the spotlight, with a renewed focus on what organisations are doing to protect the health and wellbeing of their disabled workers and drive out inequality.

Assessing workplace risk and ensuring appropriate adjustments are undoubtedly important. However a workforce that is genuinely committed to embracing and respecting individual differences, caring for those that may be disadvantaged through health impairments and empowering individuals of all abilities to achieve their full potential, is a workforce that is more likely to succeed in the long-term. Committing time and resource to proactively shaping such initiatives is likely to be well-spent.

Equality is a key concern for all businesses, however issues can often be challenging. Drawing on extensive experience and in-depth knowledge, our team of discrimination lawyers can assist in navigating the issues and finding appropriate solutions in this complex and sensitive legal area.