Sacking self-isolating staff and gender discrimination

Please note that the situation regarding COVID-19 is subject to rapid development, as is the following information from Farore Law. This article is intended as guidance only and should not be used as a substitute for legal advice.

The ongoing public health crisis due to the coronavirus (“COVID-19”) continues to raise concerns between families, companies, and industries. Social distancing is one measure that is currently advised by the World Health Organisation and numerous governments to mitigate the effect of the pandemic by reducing the transmission of COVID-19.

As a result, there has been discussion on the issue of staff (whether employed or on a zero-hours contract) whose jobs have been or may be terminated as a consequence of voluntarily self-isolating and not attending their work on-site. This article considers how indirect discrimination may apply to working mothers who do not have a disability nor are medically advised to self-isolate but elect to self-isolate out of concern that they may be in danger or pose a danger to others, in particular those they care for. [1]

What is indirect sex discrimination?

Simply put, an employer indirectly discriminates against a worker if:

(a) a worker has the protected characteristic of gender [2] (i.e. is a man or woman); and

(b) their employer applies a provision, criterion or practice (“PCP”) that applies to the worker and all other workers who do not possess the same protected characteristic; and

(c) that PCP puts those with the worker’s characteristic at a particular disadvantage compared with those who do not have it.

In other words, indirect sex discrimination is the seemingly neutral treatment of a group of people that has, in reality, a discriminatory effect on either men or women.

However, unlike direct discrimination, indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim (as per section 19(2)(d) of the Equality Act 2010).

What could a PCP be?

The Equality Act 2010 does not provide a concrete definition of what a PCP is. This is for the Employment Tribunal to decide. Nevertheless, a liberal approach should be adopted to interpretation. [3] The Equality and Human Rights Commission (“EHRC”)’s Statutory Code of Practice on Employment also states that a PCP should be “construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a ‘one-off’ or discretionary decision.” [4]

As such, it is arguable that the practice of dismissing employed- or zero-hour contract staff who voluntarily elect to self-isolate may constitute a PCP in the legal sense.

How would dismissing staff regardless of their gender put women at a particular disadvantage compared to men?

On the basis that the practice of removing staff voluntarily electing to self-isolate is considered a PCP, there is a prima facie argument that this discriminates against women on the basis that a greater percentage of working women than men are primary carers for children [5] and others. [6] According to the most recently available datasets from the Office of National Statistics (“ONS”):

• At 2019, the number of lone-parent (mother) families with dependant children was 1,622,000. Lone-father families with dependant children was significantly lower at 172,000. [7]
  

• The latest ONS statistics on total part-time workers (as at 17 March 2020) show that whereas 2,160,000 men work part time, 6,225,000 women do. [8] This equates to 74.2% of total part-time workers being women, and may also serve as a basis for arguing that women are significantly more likely to be primary carers.

• As at October-December 2019, the employment rate for women living with dependent children was 75.7%. For men, the rate was 93.4%. [9] Based on the dataset from which these figures were drawn, the average percentage of the employment rate for women and men living with dependent children between 2015 to 2019 inclusive is 73.2% and 92.4%.

• In 2011, women were “notably more likely” to be unpaid carers than men. 57.7% of unpaid carers were women; 42.3% were men in England and Wales. [10]
  

• Across English regions and Wales, women took on a higher share of the unpaid care burden than men in a similar proportion, regardless of the amount of unpaid care the region’s usually resident population provided. [11]
  

• In 2011 in England, 1% of men and 1.2% of women were in full-time employment while providing 50+ hours of unpaid care. In Wales, the equivalent numbers were 1.6% for men and 1.8% for women. [12]
  

• Economically active women in both full-time and part-time employment provided a greater share of the unpaid care burden than men. In England 12.1% of women working full-time provided unpaid care; in Wales it was 15.3%. [13]
  

• In 2019, a greater percentage of women were also ‘sandwich carers’, meaning that they combine childcare with the care of older or disabled people. [14]

In view of the figures above, it is arguable that working women are more likely to have at-risk dependants whom they do not wish to expose to the virus by continuing to work on-site. Consequently, women are more likely to be visited by a particular disadvantage as a result of the PCP.

What could be a “proportionate means of achieving a legitimate aim” regarding dismissal in the COVID-19 context?

The nature of COVID-19 is rapidly developing, and it is uncertain what the impact on employers will be in light of the increased number of individuals who are likely to be unable to work due to the virus. However, the efficient running of a business, reduction of costs, and the need to provide an effective service could all be considered legitimate aims of the employer. [15]

Should the job necessitate on-site presence, without which the employer could not properly run its business, there is an argument to be made that imposition of the PCP is justified. [16] The impact of the staff member’s absence on the employer is a “significant” consideration in determining whether dismissal is a proportionate response, and “a time comes when an employer is entitled to some finality”. [17] In any event, the effect of the PCP will be carefully assessed to see if there are less discriminatory measures that could also achieve the aims. For example, if an employer could have facilitated remote working for a person (even if for a limited time) instead of dismissing them, then the PCP is unlikely to be considered proportionate (and therefore discriminatory). The Tribunal will ultimately make an objective judgment about whether or not removing staff who voluntarily self-isolate is reasonably necessary. There is no scope for the range of “reasonable responses”. [18]

Are there any alternative protections against dismissal for working mothers (and others) who are voluntarily self-isolating as a result of COVID-19?

Given the rapidly developing nature of the pandemic and the fact that COVID-19 remains comparatively less understood than other viruses, employers should facilitate flexible (including remote) working when possible for those who self-isolate as a precautionary measure if they have genuine concerns. [19] UK Government advice also states an expectation that most employers and employees will reach a “sensible compromise”. [20]

However, in the event in which a compromise between employee and employer cannot be reached, working mothers and carers should also consider Section 100 of the Employment Rights Act 1996 in relation to COVID-19: the right to protection against detriment in health and safety cases. Under Section 100, any employee, regardless of caring responsibilities, has the right to not be subjected to a detriment on the basis that they have a genuine and reasonable belief that there is serious and imminent danger (to themselves or others) from COVID-19 at the workplace and therefore elected to self-isolate despite the employer’s insistence that they return to work. Therefore, a dismissal in these circumstances could be regarded as automatically unfair. The protection also applies to employees on zero-hours contracts.

[1] Other valid protected characteristics for an indirect discrimination claim are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. The protected characteristic of ‘pregnancy and maternity’ cannot be used an indirect discrimination claim.

[2] Those who self-isolate on medical advice or have a disability within the meaning of section 6 of the Equality Act 2010 that means that they are particularly vulnerable and are not addressed in this article.

[3] United First Partners Research v Carreras [2018] EWCA Civ 323 (CA)

[4] EHRC Statutory Code of Practice on Employment

[5] London Underground v Edwards [1998] IRLR 364 is a case in which it was held that requiring women to work long and/or uncertain hours was indirectly discriminatory against women, as they would find this particularly difficulty to comply with on the basis that a greater percentage of women are primary carers.

[6] Caring & Family Finances Inquiry: UK report (2014)

[7] ONS, “Families and households” (2019)

[8] Including employees, the self-employed, and some temporary employees. Refer to the ONS dataset for further information.

[9] ONS, “Employment rates for men and women living with and without dependent children: Table Q” (2020)

[10] ONS, “Full story: The gender gap in unpaid care provision: is there an impact on health and economic position?” (2013)

[11] ONS, “Full story: The gender gap in unpaid care provision: is there an impact on health and economic position?” (2013)

[12] ONS, “Full story: The gender gap in unpaid care provision: is there an impact on health and economic position?” (2013)

[13] ONS, “Full story: The gender gap in unpaid care provision: is there an impact on health and economic position?” (2013)

[14] ONS, “Sandwich carers” (released on 14 January 2019)

[15] This is based on O’Brien v Bolton St Catherine’s Academy, which involved discrimination arising from a disability case concerning a teacher’s dismissal owing to long-term sickness absence. The Court of Appeal held that, despite finding in favour of the teacher, “the efficient running of the school, the reduction of costs and the need to provide a good standard of teaching” were accepted as legitimate aims.

[16] Seldon v Clarkson, Wright & Jakes [2012] IRLR 590

[17] O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145

[18] Hardys and Hansons v Lax [2005] IRLR 726

[19] ACAS, “Coronavirus: advice for employers and employees”

[20] UK Government, “COVID-19: guidance for employees”