Bosses Face Discrimination Claims if they Flout Furlough Law

26th May 2020

With the UK Government announcing that the furlough scheme has been extended for another four months, Britain’s bosses are being urged to get legal advice before determining who should stay on leave and who needs to return to work or face a potential onslaught of discrimination claims from disgruntled employees; Employment Law Solicitors have warned.

The new Coronavirus Job Retention Scheme is a temporary scheme open to all UK employers for at least three months starting from 1 March 2020 which is designed to support employers whose operations have been severely affected by Coronavirus.

But while the circumstances themselves are unusual, normal employment rights rules apply and businesses must ‘keep within the law’ when making decisions about who to temporarily lay off and who now must come back to work – especially if the move only affects a percentage of the workforce.

Deana Bates, Employment Law Solicitor at Simpson Millar, also urged employers to be cautious when trying to ‘do the right thing’ by certain staff, even if they think they’re protecting them.

She said, “This is a tough time for employees and employers alike and generally we’re finding that everyone wants to work together with the best interests of all in mind.

“However, the usual employment rules and regulations do still apply in terms of workplace discrimination and a well-meaning boss may well find themselves in real trouble if they don’t work within the law when making a decision on who to furlough.”

Furloughing staff based on age or sex, or because they are currently on maternity leave or have a pre-existing medical condition are all potential ‘watch outs’, according to Deana. Equally, forcing a parent with childcare issues due to Covid-19 to come back could also land employers in hot water.

Deana added, “Where an employer has a proportion of the workforce undertaking a particular type of work which is still required, just on a smaller scale due to COVID-19, they must take care not to select an individual person or group of individuals to be furloughed on the basis of a Protected Characteristic.

“By way of an example, a blanket decision to place all pregnant employees on furlough leave without giving them any choice could result in a potential pregnancy discrimination claim, if for example the pregnant employee would be financially worse off.

“Although employers may feel they are protecting pregnant employees by placing them on furlough leave, it would be sensible to discuss any concerns the employee may have and explore any alternatives such as remote working.”

Deana also said that to apply a blanket rule across the workforce that those over 60 are to be placed on furlough leave could result in an age discrimination claim; similarly placing all employees with pre-existing health conditions on furlough leave could result in potential disability discrimination claims under The Equality Act 2010.

She added, “Employers in this situation should consider any reasonable adjustments to enable such employees to continue working before making the decision to place the employee on furlough leave and ensure that any blanket decisions they make are not discriminatory.

“If applying a selection criterion when deciding who to furlough, focused on productivity output, businesses should take care to ensure that any decreased output levels were not linked to an employee’s disability.

“Equally, when getting people back to work from furlough employers need to discuss each employee’s personal circumstances. For example, to compel a parent with childcare responsibilities which are impacted by Coronavirus to return to work could result in a potential claim.

“If there is any indication of discrimination, or if an employer hasn’t worked with an employee to manage personal circumstances such as childcare needs, employees have exactly the same rights to make a claim as they would under any other circumstances.”

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