A recent Public Health England (PHE) report found that the risk of death from COVID-19 is higher for BAME (Black, Asian and minority ethnic) communities.
In a week where cries of “Black Lives Matter” grew stronger and louder, the finding that people from BAME backgrounds are more likely to die from COVID-19 landed hard.
The sense that we are all in the same boat when it comes to the fight against COVID-19 seemed a long way away from reality and has left trade union bodies, employers and BAME communities alike wondering how BAME workers can and should be better protected in the workplace.
Key findings
The PHE report confirmed that age remains the biggest risk factor when considering the mortality risk from COVID-19, while being male is another.
However, and as many had believed to be the case already, the risk of death for those diagnosed with COVID-19 is disproportionately higher for people from BAME communities compared to white ethnic groups.
The correlation between this finding and the overrepresentation of workers from BAME backgrounds in some key worker roles, particularly within the NHS, wider healthcare sector and public facing roles has not been lost. However, as it stands, the PHE report offers no conclusion on the cause of these findings.
It is also important to appreciate that the analysis did not take into account the impact of a person’s occupation, comorbidities or obesity on their mortality risk from COVID-19, despite these all appearing to be major risk factors.
The report cites the relationship between health and ethnicity as “complex and likely to be the result of a combination of factors” but stops short of addressing the socioeconomic inequalities and structural racism to which some commentators attribute the findings.
Specifically, the report found that:
- Chinese, Indian, Pakistani, other Asian, Caribbean and other black ethnicity people had between 10% – 50% higher risk of death from COVID-19 compared to white British people.
- The Bangladeshi community were most at risk compared to white British people, with approximately double the risk of death.
- Certain occupations including nursing assistants, security guards and taxi drivers had experienced a larger increase in deaths related to COVID-19 compared to other occupations.
London Mayor Sadiq Khan said “lives depend” on finding out why the virus disproportionately affects BAME people and on what actions the government will take to stop it doing so.
What now?
To the frustration of many, the PHE report offers no guidance or advice on how to better protect BAME people.
When pressed for advice, Health Secretary Matt Hancock said that the advice to BAME people was “the same as to everybody, but with more emphasis”.
As such, employers are left with the unenviable task of trying to strike a balance in ensuring their business remains operational, while minimising risk to the health and wellbeing of their workforce in the face of stark data about vulnerability.
Health and safety
All employers have a duty to take reasonable care of the health and safety of their employees, however, employers are now being asked to do so in very challenging circumstances.
The Government and World Health Organisation have produced guidance and a risk assessment tool which seeks to avoid the spread of COVID-19 in the workplace. If not already doing so, employers would be well advised to ensure that they comply with the recommendations.
Some employers that have either kept their workplaces open or that are taking tentative steps to return already have risk assessments in place. However, the situation we find ourselves in is rapidly moving and it is vital that those assessments are revisited and reconsidered on a frequent basis and whenever more information about how COVID-19 spreads and who is at most risk becomes known.
Vulnerable groups
Risk assessments should certainly acknowledge that some groups, like those with particular underlying health conditions, those in the later stages of pregnancy and, now, those from BAME backgrounds are at higher risk. As the PHE report found, older people also remain in the highest risk category which will be significant for employers with a disproportionate number of older workers.
The Equality Act 2010 offers protection from discrimination on the basis of a protected characteristic which includes disability, age, pregnancy, sex and race.
As such, it is vital that even well-intentioned attempts to ensure the health and safety of vulnerable groups that have a protected characteristic, do not give rise to claims of direct or indirect discrimination.
Employers may, in some circumstances, have an objective justification defence to measures taken (e.g. that they were pursuing the legitimate aim of protecting the health and safety of vulnerable employees). However, a more measured approach would be to avoid blanket policies that apply to specific groups of people in the first place.
Instead, engagement with trade unions and with individual employees that focuses on individual circumstances and evaluates individual risk on a case by case basis is key.
So too are the practical health and safety measures which employers are already putting in place – reduced numbers attending the workplace at any one time, maintaining social distancing, facilities for regular hand washing and sanitisation and frequent cleaning of workspaces.
As has been observed throughout this crisis, there is rarely a one size fits all approach that will work for every employee and for all workplaces.
Refusing to return to work
Sections 44 and 100 of the Employment Rights Act 1996 (ERA) affords rights and protections to employees (and in certain cases, workers) who raise health and safety concerns and, as a consequence, suffer a detriment or dismissal respectively.
In the context of the situation we have, it is open to employees to assert that they are entitled to refuse to attend or to leave a place of work “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert” (section 44 (1)(d)) ERA).
Employers should be wary of taking disciplinary action, withholding pay and/or dismissing an employee where their absence stems from a reasonable belief that attending work would put them in serious and imminent danger with regards to COVID-19 and where they could not reasonably have been expected to avert that danger.
The PHE report clearly documents the higher level of risk faced by people from a BAME background. As such, and until more is known about what causes this risk, employers should acknowledge that ethnicity, just like underlying health conditions and other vulnerabilities, will need to be on the table in the assessment of risk.
Where an employee refuses to attend work, a detailed understanding of why this is, and an examination of what steps can be taken to minimise risk and alleviate concerns, should be undertaken.
In recent weeks, employers have had to become familiar with the concept of underlying health conditions (or those of a household member) making people more vulnerable to COVID-19 either via formal shielding or simply arising from an employee’s concerns. Employers have employed a range of responses including sick leave, agreed unpaid leave and use of furlough.
Indeed, we have already seen this play out in the House of Commons this week after the controversial decision by Commons Leader Jacob Rees-Mogg to insist that MPs physically return to Parliament if they intended to exercise their right to vote (previously MPs have had the option to participate in proceedings via Zoom, which allowed those considered vulnerable to participate without risk to health).
Shadow leader of the Commons, Valerie Vaz, commented “The abolition of the hybrid remote Parliament which allowed all MPs to take part regardless of their personal circumstances is discriminatory and would not be acceptable in any other workplace”.
In light of the evidence presented in the PHE report, employers may now have to address understandable concerns from employees that their BAME heritage makes them more vulnerable to COVID-19 and will need to act quickly if they consider additional employees should be furloughed (the furlough scheme being due to close to new applicants on 30 June means that employees will need to have been furloughed by 10 June to fulfil the three-week minimum furlough requirements).
Until further guidance is issued, it remains that flexibility, discretion and understanding are the key tools for employers in navigating this situation.
Positive action
While answers continue to be searched for, there are calls for the findings of the PHE report to mark the start of meaningful change within society as a whole. This is an individual and collective responsibility but one in which employers can make real impact.
Although as a general proposition, positive discrimination is prohibited in England and Wales, section 158 Equality Act 2010 provides employers with the ability to take general positive action and section 159 provides for employers to take positive action in recruitment and promotion exercises.
Would greater ethnic diversity throughout the workforce sectors have produced a different outcome in this pandemic? The answer is that we don’t yet know but employers should take this opportunity to consider the diversity of their workforce and ask themselves why that is as it is. It may be that the invisible barriers some people have faced in our society have carried the ultimate cost and it is incumbent on us all to do something to change that.
