Managing Director and Employment Solicitor Kalra Legal Group
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Safeguarding BAME employees around the issue of returning to work

Statistics published by Public Health England show the disproportionate and worrying impact that Covid-19 has had and will continue to have on Black, Asian and Minority Ethnic  (BAME) communities. How can employers plan a safe return to work, for all employees, and in particular those who are more vulnerable?

20th Aug 2020
Managing Director and Employment Solicitor Kalra Legal Group
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BAME employee in the office
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Public Health England’s review into the ‘Disparities in the Risk and Outcomes of Covid-19’ found that “death rates from Covid-19 were higher for Black and Asian ethnic groups when compared to White ethnic groups”. 

If this was not concerning enough, the review also highlighted that “people of Bangladeshi ethnicity had twice the risk of death when compared to people of White British Ethnicity. People of Chinese, Indian, Pakistani, Other Asian, Caribbean and Other Black ethnicity had between 10 and 50% higher risk of death when compared to White British people.” 

The disproportionate impact of Covid-19 on BAME employee’s is also shown by the impact on the job market. Research indicates that BAME people were nearly twice as likely (13%) to report having had their hours reduced compared with nationally representative polling from May (7%). They are also twice as likely to report having lost their job (7% compared to 4% nationally from May and 3% from June).

Can BAME employees return to work? 

From the above figures, it is clear to see why BAME individuals may feel nervous about returning to the workplace whilst the threat of Covid-19 still exists. It is for the employer to address and ease this anxiety by taking the appropriate steps and protecting employee’s health and safety at work. 

Unless there are exceptional circumstances, it would not be unreasonable for employers to request that their employees return to work in the current climate. The UK government has announced the easing of lockdown measures across the UK and has paused shielding for vulnerable individuals. 

The importance of a happy and content workforce should not be overlooked and a simple discussion with employees can go a long way to increasing morale. 

Planning a safe return to work

The key for employers is preparation. Without careful planning and preparation, an employer may not be able to implement the new government measures that are required. Employers must adhere to industry specific guidance and make changes that are needed within the workplace.

Organisations must carry out a Covid-19 risk assessment for employees, and can also carry out a more detailed and specific risk assessment for vulnerable employees, including BAME employees, to consider their individual circumstances.   

Arguably the most undervalued step in this planning process is where the employer should consult with employees about returning to work. The importance of a happy and content workforce should not be overlooked and a simple discussion with employees can go a long way to increasing morale. 

Through having these conversations employers will be able to swiftly address any health and safety concerns raised by staff, including any specific concerns raised by vulnerable groups, such as BAME employees. 

From these discussions, employers will be able to introduce any adjustments that are necessary or helpful to employees. For example, an employer may stagger start times in a different way to allow employees to avoid rush hour on public transport. 

After these discussions, an employee may also re-consider whether they want the employee to return to the workplace. They may opt to keep the employee on furlough or working from home due to health and safety concerns. 

Legal concerns for employers and BAME staff

One obvious legal concern is discrimination. If an employer treats a BAME employee less favourably than a non-BAME employee, that BAME employee could argue indirect discrimination. One example of this would be if a BAME employee was told they must attend work, even though there is evidence to suggest they are at higher risk of Covid, but a non-BAME employee does not have to attend work. 

It is worth noting that if an employer favours a BAME employee over a non-BAME employee, they may also still be subject to a claim for indirect discrimination. 

An employer’s defence to this claim of indirect discrimination would be to show that they used a proportionate means of achieving a legitimate aim. Keeping with the example above, an employer could use this defence by demonstrating they put health and safety measures in place for a safe return to work and they needed the employee to attend work for financial reasons. 

It is important to be considerate and respectful of everyone’s individual circumstances. After all, you do not know that person's unique situation.

Another legal concern is the protection for employee’s health and safety under current legislation. For an employee to claim unfair dismissal they must have two years continuous service. However, if an employee is dismissed in circumstances where they are prioritising their health and safety, they can claim compensation regardless of their length of service.

Therefore, employers should be careful not to act hastily and dismiss an employee if they refuse to attend work due to health and safety concerns. This further illustrates the importance of planning and consulting with staff, particularly those who are vulnerable or at-risk. 

Tips for employee’s working with BAME colleagues during Covid

We are all facing this pandemic together, so we should all support one another during these testing times. These tips are transferable and usable for all colleagues, not just those from a BAME background.

It is important to be considerate and respectful of everyone’s individual circumstances. After all, you do not know that person's unique situation. They may be living with an elderly relative who is high risk, or they may have a condition that is not visible that makes them high risk.

What may seem like drastic and exaggerated precautions may be the difference between life and death for that person. If you see a colleague struggling, you should communicate with them and offer support.

The importance of health and safety

Health and safety is a paramount consideration at any time, but especially in the current climate of Covid-19. Without proper planning employers run the risk of causing issues with staff, including potential legal repercussions.

BAME staff will undoubtedly feel anxious as research shows they are more at risk of contracting Covid-19. It’s for the employer to ensure proper measures and procedures are put in place, so risks are minimised. Staff that feel safe to come into work will be happy and ultimately more productive and profitable for the business. 

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