In March, when the full force of the coronavirus pandemic was first felt across the world, Madonna (randomly from a bath scattered with rose petals – watch it here if you’re interested!) called it “the great equaliser”. She was referring to the fact that coronavirus didn’t appear to discriminate; all countries were being affected, regardless of wealth or world standing; the rich and famous were succumbing to the disease, with Prince Charles, Tom Hanks, Boris Johnson (& Co) and Plácido Domingo all falling ill (to name but a few).
Even the UK government initially suggested the pandemic was a great social leveller – with politicians telling us that “we’re all in this together” (see Rishi Sunak’s speech of 26 March).
But of course, sadly, they have been proved wrong.
The unequal impact of coronavirus
As the coronavirus pandemic has unfolded, it has become increasingly clear that its impact is not being felt in equal ways across society. This is both in terms of who is most at risk of the disease, but also who is more likely to feel a lasting financial and social impact as a result.
Here are a few examples of this:
- Public Health England has published a report on the Disparities in the risk and outcomes of COVID-19. This confirms that “the impact of COVID-19 has replicated existing health inequalities and, in some cases, has increased them”. Risk factors include: age (particularly those over 80); sex (males are at higher risk than females); living in more deprived areas; people with certain health conditions; and Black, Asian and Minority Ethnic (BAME) groups.
- The frontline staff who had to continue working during lockdown (nurses, supermarket staff, care home workers etc), were disproportionately lower paid members of the workforce and often also from BAME groups. Similarly, those who are unable to work from home, and have now been told by the government to return to work, tend to be people in lower paid manual jobs. Inevitably they have faced greater upheaval and exposure to coronavirus than those people who have been able to remain at home during this period.
- A report by the Institute of Fiscal Studies and UCL looked at the impact of coronavirus on parents, particularly in light of school closures. They found that mothers were more likely than fathers to have lost their jobs or been furloughed; seen a greater reduction in working hours; suffered interruptions in their work; and picked up the bulk of the time spent on childcare and housework. The researchers warn that this could lead to “a further increase in the gender wage gap” (see here).
- The London Metropolitan University also emphasised that working parents are more likely to suffer long-term career progression implications, since they will have less time to focus on “career-enhancing activities” compared to those without children.
- In response to the coronavirus outbreak, the government suspended the enforcement of gender pay gap reporting this year. Although this was a welcome reprieve for businesses, who were already stretched dealing with implications of lockdown, the result is that half of businesses have not published results for this year. Commentators have warned that this could risk pushing equality off the agenda and disproportionately affect women in the workplace (see here and here for example).
- The Institute of Fiscal Studies has also looked at the impact of coronavirus on young people, highlighting how workers under the age of 25 are two and a half times more likely than those over 25 to work in sectors which closed entirely during lockdown. Low paid workers have also been badly hit, with the lowest-earning 10 per cent of workers seven times as likely as the highest earners to work in sectors that have closed or which make it harder for them to work from home.
- Research by the Fawcett Society has found that coronavirus is having a greater financial and psychological impact on BAME women compared to white women.
- The TUC has reported that since COVID-19 began, one in four pregnant women and new mothers have experienced unfair treatment or discrimination at work, including being singled out for redundancy or furlough. 71 per cent of new mothers are also struggling to return to work because they are unable to find childcare to enable them to go back.
These aren’t the only reports by any means which have looked at the equality impact of coronavirus, but the message in all of them is very similar: the impact of coronavirus is highly unequal, and it is exacerbating existing social and economic inequalities. Left unchecked, this is only likely to get worse.
How is this relevant for employers?
This issue hasn’t gone unacknowledged by the government, with its Equality Hub promising that it is going to look further into Public Health England’s report on disparities of risk (mentioned above). However, realistically, national initiatives to mitigate inequality may be a long time coming, and in any event, without action at a local level are unlikely to have much of an impact. This means that employers have a significant part to play in trying to tackle the unequal impact of coronavirus in the workplace.
We are not saying this will be easy, especially at a time when businesses are facing significant financial and operational pressures. There is a risk that, the longer this pandemic continues, employers may start losing sympathy with people who face barriers to returning to work, no matter how genuine those barriers might be, such as those who are shielding or have childcare issues. However, penalising these individuals not only leaves them vulnerable to discrimination in the workplace, but also risks perpetuating existing equality issues, the impact of which could unfortunately be felt for a long time to come.
We have talked before about the steps which employers should be taking to reduce the risk of discrimination at work, such as ensuring they have an equal opportunities policy in place and carrying out training for staff. However, given the obviously disproportionate affect which coronavirus is having, it is likely that extra steps are going to be required to tackle this effectively.
How this is done will very much depend on the nature and make-up of individual organisations, but there are some overarching principles which are likely to be of relevance to everyone:
1. Gather as much information as possible
What is the make-up of your workforce? What equality factors might be particularly relevant to your organisation? Who might be at greater risk of suffering disproportionately as a result of coronavirus? It is important to find out this information to understand your organisation’s needs and priorities.
2. Carry out risk assessments
It is already a requirement for employers to carry out a health and safety risk assessment before they return employees to the workplace. This should include consideration of people who are at greater risk of coronavirus, which as mentioned above, should include not just those in vulnerable groups identified by the government, but also those who statistically have been shown to be at greater risk, such as people in BAME groups.
3. Carry out impact assessments
The public sector has been subject to the Public Sector Equality Duty for ten years now. This requires them to consider how their policies or decisions affect people who are protected under the Equality Act 2010. If private sector organisations are serious about tackling equality, introducing similar equality impact assessments, particularly in relation to their policies responding to coronavirus, can be an effective way of understanding and responding to equality risks.
4. Tailor your actions
People are experiencing coronavirus in very individual ways, and therefore employers may need to take an individual approach to employees, for example, when returning to the workplace. Equality is not about giving everyone the same but giving them what they need to try to make the playing field as level as possible. This may mean tailoring your response and making reasonable adjustments (even when not required by law) to try to reduce the impact of coronavirus on those who are feeling it most.
5. Address pay equality
It has been 50 years since the first legislation was introduced to tackle equal pay (the Equal Pay Act 1970). Given this, the level of the disparity is still fairly depressing (an analysis of the available data has shown that the pay difference has increased this year from 11.9 per cent to 12.8 per cent) and as mentioned above, the fear is that coronavirus is likely to exacerbate this. To try to reduce this risk, ensure that pay cuts do not focus on people lower down the organisation, who are often women; and watch out for women reducing hours, and therefore pay, to look after children.
6. Be aware of the impact of an imbalance of power
In any economic downturn, power shifts towards employers. Employees can feel powerless and vulnerable and may not speak out to protect themselves and others. This can lead to an unhealthy culture, uninformed decision making and, in the worst-case scenario, an increase in instances of sexual harassment. Employers should take positive steps to maintain a healthy and open workplace culture.
7. Monitor the situation
This is not a static issue and may well change as the pandemic evolves and the longer it goes on. In particular, watch out for the disproportionate impact of redundancies and unemployment on particular groups – such as women, BAME and those with disabilities. Continue to carry out equality impact assessments on future decisions to identify whether particular groups may be disproportionately affected.
A positive note to end on?
There are some potential glimmers of light regarding equality among what could otherwise feel like entirely negative news. Some of these are highlighted by LSE and the Centre for Economic Performance in their report on Work, care and gender during the COVID-19 crisis and include:
- The large-scale (and in the main successful) move to homeworking in a lot of organisations, may mean that employers start to recognise flexible working as a good thing, or at least not subject to as many perceived barriers as they might have done previously. Increased home working could benefit women in particular (who still tend to have the bulk of childcare and household responsibilities), for example, by allowing them greater opportunity to combine work and family commitments, potentially in careers or higher paid jobs where it wasn’t possible before; it could also reduce the need for people to be ‘present’ in the office in order to progress in their career. Increased flexibility of this sort may also benefit people with certain disabilities who may, for example, find it harder to leave the house or travel very far, giving them greater access to jobs.
- There has been a lot written about the importance of fathers taking more of a role in childcare, both for children and for women’s equality (see here for example), but cultural and social norms have often been a barrier to this. The LSE and Centre for Economic Performance (see above) have reported a shift in the allocation of childcare and housekeeping responsibilities during coronavirus, where a lot of men have been forced to work from home. They express a hope that this could help with the easing of traditional gender roles in the future.
So, while there are some potential positive developments, action will still be required by employers in order to see these translated into changes in the workplace. The take-up of shared parental leave and flexible working among men is still disproportionately low – possibly because it is discouraged by employers or perceived by men to be potentially career-limiting. Coronavirus and the success of home working gives employers an opportunity to revisit these sorts of perceptions and, in doing so, take steps to promote equality in the workplace.
Although coronavirus does not discriminate, in the sense that no-one is immune, it is clear that its impact is being felt very differently by different groups of people. The worry is that, if left unchecked, the negative impact of this on diversity and inclusion will be felt long after the pandemic has ended and could undermine some of the real social progress which has been made by things like #MeToo and gender pay gap reporting. Although employers are undoubtedly being pulled in all directions by coronavirus, it is important they do not lose sight of equality in their actions and decisions if they are to play a part in reversing the disadvantage the virus is causing.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, June 2020