The impact of the pandemic on diversity and equality law in the UK

Keith Corkan
Woodfines, London
keithcorkan@hotmail.com

Introduction

It is self-evident to those inside and outside the legal profession in most countries that employment and discrimination lawyers have derived significant working opportunities arising directly out of the pandemic. Just as the pandemic has witnessed workplace practices adapting to changed circumstances including the application of extensive governmental guidance, lawyers have become creative in advising employers how such guidance should be applied in practice, including the consequences of non-compliance.

Nor should it be forgotten that the period of the pandemic has coincided with the Black Lives Matter movement, with many institutions making diversity and inclusion a priority. The job prospects of ethnic minorities have been hit particularly hard, according to a recent report by the Resolution Foundation.

Many organisations have imposed minimum diversity requirements for panels of external law firms. In turn, a growing number of law firms have elected female leaders, including Linklaters, Herbert Smith Freehills and Freshfields.

Ageism, status and generational discord

Both old and young people in the United Kingdom have been disproportionately affected by the economic fallout of the pandemic. In particular, the redundancy rate for the over-50s remains the highest for any age group as employers in many cases fear that older workers who succumb to Covid-19 represent not only a risk to profitability, but also as potential claimants they could assert that they contracted Covid-19 in the workplace, and that their employer is at fault.

Such claims in the UK have not yet materialised to any significant degree because of the complexity of the factual, medical and legal issues Covid-19 raises, including the need to distil and analyse the numerous guidance provisions from the UK government, various statutory bodies and industry groups as part of the exercise of showing a breach of duty of care.

Regardless of such potential claims, age or disability discrimination claims by the elderly or vulnerable workers may be alternative courses if there is evidence of improper selection for redundancy because of age or vulnerability that amounts to a disability.

The combination of the pandemic and identity politics have arguably resulted in employees of all ages questioning inequality and seeking to improve their status, even if it is merely a request to work from home. There is growing recognition that having power to control the work agenda is important to the wellbeing of workers, and ‘autonomy’ has become a new aspiration for employees in many industries.

Younger workers in particular are increasingly questioning the traditional principle of hierarchy in the workplace and the practice of ‘waiting out’ for many years before reaching a level of influence. Most employers have struggled to address this issue with a number asserting the importance of seniority and experience to justify the status quo. It remains to be seen if this situation could form the basis of an age discrimination claim in certain circumstances.

Gender equality

Other recent surveys show that women have been hit harder than men because of the ‘hidden labour’ involved in home working such as childcare, caring for sick or elderly relatives and attending to usual domestic chores, to the extent of affecting their ability to do their jobs and to make progress in their careers.

Despite the development of paternity, parental leave and time off for family and dependants being extended in many countries, surveys show that women are more likely to assume responsibility for such hidden labour and the increased risk of detrimental career impact.

This is at least in part because women are more likely to work in those industries that require face-to-face interaction such as retail, hospitality, travel, social care and education, with more limited opportunities to work remotely, thus increasing the pressure to work less, and in many cases being forced to leave employment.

Such disproportionate impact serves as a warning sign for employers in relation to the importance of home working and other forms of flexible working, and possible discrimination claims where requests from female employees are denied, not to mention the plethora of health and safety and other regulatory issues that has assumed greater importance in relation to homeworking. This includes the impact of working from home on mental health, particularly for single women with or without childcare responsibilities.

Assuming employers are well advised on these issues, and have succeeded in ‘normalising’ flexible working for both genders, they also have to grapple with additional discrete managerial issues that could affect women who work part time or remotely. Interesting projects tend to be given to those employees in the office, and there could be a risk of home workers being left out of decision-making which in turn might encourage online ‘presenteeism’ and a possible threat to family life. Presenteeism should not be confused with pleasanteeism, which is the masking of mental health issues with a smiley face.

Employment lawyers readily appreciate that the pandemic has thrust employees’ mental and physical wellbeing into the spotlight. In addition to the need to take reasonable steps to ensure that employees’ mental health is not endangered, including responsibility for those working remotely, multinational employers are increasingly taking advantage of protecting the wellbeing of their staff outside work, for example by providing fertility treatment benefits.

Reducing the emotional and financial burden on women and LGBT couples in this way is being seen as an important equality and diversity issue given that the difficult experiences of those involved is generally not protected under equality legislation.

Similarly, a growing number of FTSE companies are introducing menopause policies for their employees in an effort to increase productivity and to improve diversity. According to the Chartered Institute of Personnel Development, almost 900,000 women in the UK left their jobs in 2019 because of menopausal symptoms.

Helping to retain senior and experienced female staff should assist in increasing the pool of talent for senior corporate roles including selecting quality candidates for the top positions.

Ethnic minority issues

The UK government and institutions continue to grapple with the issue of racial inequality across British society after the Black Lives Matter protests last summer. In March this year, the Commission on Race and Ethnic Disparities published a government commissioned report aimed at providing a summary of racism within healthcare, education, policing and the workplace.

The report was heavily criticised for understating the effects of institutional racism within many organisations, and there have been calls for more extensive mandatory pay gap reporting including data broken down by ethnicity.

In September 2021, such criticism was echoed in a report from the Fawcett Society, a gender equality charity, which found that women were almost invisible from positions of power across public and private sectors in the UK. According to the report, six per cent of FTSE 100 CEOs and 35 per cent of civil service permanent secretaries are women, and not one is a woman of colour. The charity said that the low representation of ethnic minority women in leadership positions was due to structural racism and other barriers such as stereotyping, lack of support and guidance from education through to the workplace.

Boards of directors

The increase in virtual meetings has for many organisations resulted in opportunities for executives from outside the UK to participate in them. This has allowed companies to address the topical issue of board diversity by including participants from varied backgrounds with different skills and experiences.

In the UK, women made up more than half of new FTSE 350 boardroom directors in 2020 as companies came under pressure to improve the gender balance of their top management, even though many appointments were non-executive ones. The 33 per cent target for FTSE 100 and FTSE 350 companies imposed by the Hampton-Alexander review was achieved in 2020.

Despite this progress, the gender pay gap of FTSE companies remains stubbornly high at 40 per cent and wider at the top end of management, suggesting that the ‘glass ceiling’ remains an issue. Women who make it to the boardroom are likely to be lower paid non-executives, they are less likely to become chair and there are fewer women than men who serve on internal committees. These restraints are reflected in the broader economy in the UK.

It is now well established that increased diversity improves the quality of leadership and profitability because of the broader perspectives, experiences and backgrounds and the minimalisation of ‘groupthink’.

The Financial Conduct Authority is presently considering a proposal whereby listed companies should be required to comply or explain why they miss targets for gender and ethnic diversity on boards and this process could also be extended to pay differentials between genders and different ethnicities.

Conclusion

There can be little doubt that the range of workplace issues caused by the pandemic has increased the scope of advisory work for lawyers. With thousands of workers set to return to the office during the final quarter of 2021, employers are having to address the question of vaccination and testing and whether one or both should be imposed on their staff.

The UK position diverges from that of the United States where legal guidance entitles employers to require vaccination. UK employers need to weigh up the health and safety advantages against the risk of discrimination claims by vulnerable workers or workers who otherwise object and may feel forced to resign in a tight labour market.

Given the spread of the Delta strain, however, and the influence of the US experience, this position may well change, with employers possibly succeeding in justifying mandatory vaccinations as a defence to discrimination claims in due course.

There is also an emerging view that testing should assume a greater part of an employer’s strategy of dealing with the virus given that vaccinating staff is no guarantee against re-infection. In the light of ongoing research and development, testing may assume greater importance in the workplace and, depending on circumstances, could prove to be more acceptable to workers than mandatory vaccination. ​​​​​​​

In the light of these developments, it is vital for employers to have carefully worded policies that address the questions of vaccinations and testing and the different circumstances in which the two processes are invoked. Such policies should be regularly updated to reflect changing scientific advice and governmental guidance as the workplace returns to what will hopefully soon come to resemble a state of normality.