How can employers protect their BAME employees following evidence about the disproportionate impact from COVID-19?

People of black and Asian ethnic origin are at a significantly higher risk of catching and dying from COVID-19 than other ethnic groups, with individuals of Bangladeshi ethnicity having twice the mortality rate as their white British counterparts, according to a report by Public Health England.

Whilst the analysis of medical evidence is a work in progress, there appear to be a number of different factors at play causing this disparity, primarily socio-economic and socio-cultural factors including demography rather than genetic factors. It appears that the impact of COVID-19 may have exacerbated the pre-existing inequalities between BAME and white individuals which exist within our society. In Scotland an expert reference group has been established to assess the impact of Covid-19 on minority ethnic communities.

Whilst the statistics are disturbing in themselves, what do they mean for employers? In this article we consider what implications, if any, these findings have for employers and what additional considerations employers should take into account in relation to their BAME employees in order to comply with their general duty to ensure the health, safety and welfare at work of all employees, so far as reasonably practicable.

What does the duty to ensure the health, safety and welfare at work of all employees mean?

All employers are legally obliged to ensure the health and safety of its workforce, so far as it is reasonably practicable and also to provide a safe workplace and a safe system of work. This extends to mental as well as an employee’s physical health in the workplace. In the current circumstances with the country battling a global pandemic, this means that employers are obliged, so far as reasonably practicable, to reduce the risks arising from COVID-19 for its workforce. What will be deemed to be ‘reasonably practicable’ will depend on what is stated in Government guidance from time to time, which is amended regularly, within the context of the employer’s business and its resources. As at the date of this article, Government guidance remains that where it is possible, employees should work from home. However, what has become clear is that often a higher proportion of BAME employees work in sectors such as retail, public transport and healthcare where working from home is not an option.

Are there currently specific obligations placed on employers in respect of their BAME employees?

The Government has produced guidance which sets out which groups of individuals are deemed to be ‘clinically extremely vulnerable’ and at the greatest risk of severe illness from COVID-19 and social distancing guidance which specifies those who are deemed to be ‘clinically vulnerable’. The list of clinically extremely vulnerable includes, for example, individuals with certain types of listed cancers such as blood cancers. The list of clinically vulnerable includes e.g. individuals over 70 and pregnant women. Despite the Public Health England report, it remains the case, as at the date of this article, that BAME employees of themselves are not listed as being either clinically extremely vulnerable. Therefore, this guidance does not specifically prescribe additional precautionary measures to protect the health and safety of their BAME employees, in circumstances where such employees do not have conditions which would otherwise determine that they are clinically extremely vulnerable or clinically vulnerable.

This is not to say, however, that employers should not give specific consideration to how they can protect the health and safety of their BAME employees as part of its wider health and safety obligations to ensure the health and safety of its workforce, especially in sectors where employees have increased contact with the general public, and we set out below what actions an employer can take. (A similar approach should also be adopted with higher risk employees who are not recognised as clinically vulnerable or extremely vulnerable, such as those with disabilites.)

What action can employers take?

• Perhaps the most fundamental and obvious action which employers should take is to consult with and obtain the views of their BAME employees about their health and their health and safety concerns. Employers should encourage BAME employees to put forward their views so that they can be considered not forgetting that in certain circumstances it is a legal requirement that employers consult with employees on matters concerning health and safety.

• Where an organisation has a BAME network, engaging with that network will assist an employer to understand the collective issues and concerns facing BAME employees in their organisation and for BAME employees to feel that their voice is being heard, thereby ensuring and promoting inclusivity. Similarly, if the employer has a recognised trade union then it should consider engaging with appropriate trade union representatives to understand and address BAME related concerns and risk factors. Engaging with BAME networks and where appropriate, trade unions, will assist not least from an employee relations perspective, but may also help to minimise any potential future claims, which we discuss below.

• As part of this consultation process BAME employees may notify their employers of their general fears about their safety in the workplace or whether they have an underlying health condition which raises their risk profile and should be taken into account by an employer. As mentioned above, the duty to provide a safe workplace extends to mental health. If the issue for example is the employee’s fear of travelling to work on public transport employers could consider whether it will be possible to encourage or facilitate other modes of transport or flexible working hours so that employees can avoid peak travelling times. Depending on the level of anxiety (and whether they meet the other aspects of the definition), they may be considered as ‘disabled’ for the purposes of the Equality Act 2010.

• Employers should ensure that all staff are aware of any support and counselling services that the employer has to offer to promote wellbeing and address any mental health concerns. If an employer does not currently offer such services, it should consider putting appropriate services in place.

• What is clear is that employers must carry out a COVID-19 health and safety risk assessment in respect of its whole workforce. A risk assessment is a legal requirement for employers and where employing more than 5 employees the finding of the assessment must be recorded. In the context of the current pandemic such risk assessment must be reassessed and should now take into account the implications of COVID-19 on the workforce. Arguably where there is a large number of BAME employees, employers should consider whether the risk assessment should take into account relevant risk factors which affect BAME employees. Recognising that many frontline workers employed by the GLA, London for Transport, London Metropolitan Police and London Fire Brigade are BAME, Sadiq Khan recently announced that risk assessments in respect of those working in these organisations would consider the physical and mental health needs of all vulnerable staff, including BAME. A similar approach has been taken by the UK’s Royal College of Nursing who has published a position paper on employer responsibilities for BAME staff which states that it expects all employers to comply with their duty of care to workers and this includes by “updating their risk assessment processes to include ethnicity in their vulnerable and at-risk groups. Managers should be encouraged to have supportive conversations with BAME staff about any underlying health conditions.” The Welsh Government has also launched a COVID-19 risk assessment tool for BAME employees working in the NHS and social care in Wales to aid mangers understand whether additional adjustments can be made.

• Once the risk assessment has been carried out, employers must ensure that they implement the safe system of work that has been risk assessed.

• If there is an identified risk in the risk assessment in respect of certain or all of its BAME employees, if such employees are already on furlough leave, employers could consider whether it is feasible to keep them on furlough and consider topping up to full pay in order to prevent any potential indirect race discrimination claims.

• In any event, employers should think carefully before imposing blanket policies across its workforce e.g. requiring all employees to return to work or taking disciplinary action if employees refuse to return, as such policies could give rise to indirect race discrimination claims.

Can an employer force its BAME employees to work and what are the legal risks?

Clear communication with BAME employees or a BAME network and documented decision making will help to minimise the risk of legal claims. However, if a BAME employee has raised concerns about his/her health and/or health and safety and these concerns have not been adequately addressed or have been ignored and/or the employee refuses to work then an employer could face a number of potential legal claims.

Automatic unfair dismissal - Where an employee reasonably believes that there is a serious and imminent danger to their health, that employee may leave the workplace or take appropriate steps to protect themselves or others whilst they are at work and they are protected from suffering a detriment (such as disciplinary action) or from dismissal in doing so. If an employer attempts to force the employee to work and then dismisses the employee if they do not comply, such a dismissal may be automatically unfair under the health and safety protections contained in the Employment Rights Act 1996. Potential compensation for such claims is uncapped and there is no service requirement in order for the employee to bring such an unfair dismissal claim. As to what constitutes a serious and imminent danger, this is an objective test and each case will be examined on its own facts. Employees are not required to show that there was an actual risk, only that they were reasonable in believing that there was serious and imminent danger in the workplace.

Even if it is not possible to establish that there was a serious and imminent danger it is possible that any concerns raised by an employee will constitute a protected disclosure for the purposes of the whistleblowing legislation and any associated dismissal as a result of that disclosure is also deemed automatically unfair.

Indirect race discrimination – We have already mentioned above a few examples of where we foresee potential exposure to indirect race discrimination against BAME employees including imposing a requirement that BAME employees attend work. Given Public Health England’s report it is likely that BAME employees will be able to show that this requirement is indirectly discriminatory against them on the grounds of their race in breach of the Equality Act 2010 because it puts them at a particular disadvantage compared to white employees. This is unless employers can show that they did take steps to protect their BAME employees (such as those listed above) or that the requirement was otherwise a proportionate means of achieving a legitimate business aim. Such claims could give rise to a significant liability as compensation in discrimination claims is uncapped. Employers who are committed to diversity and inclusion will not want to see headlines linking their organisation to a discrimination claim.

Given the lack of specific Government guidance on employers’ obligations towards BAME employees in the context of COVID-19, employers are minded to act cautiously so as to minimise the risk of any of the potential listed claims we have identified. Employers’ actions towards their BAME employees has been brought into a sharper focus following the Black Lives Matter movement and we envisage that this will be a developing area over the next few months.