Bectu webinar highlights disabled workers’ rights during COVID-19

COVID-19 has thrown up many issues and anxieties for all workers, but these are  particularly acute for those in the vulnerable or extremely clinically vulnerable groups, a Bectu webinar heard on Wednesday (15 July).

The Bectu disability rights webinar with top, Naomi Taylor and  Ann Jones; below, Frances Cusack and Marion Scovell

Even though the government is pausing shielding advice from 1 August, employers must still consider health and safety and equality law, Prospect and Bectu head of legal Marion Scovell told the event.

The webinar – on the legal rights of disabled workers in the time of COVID-19 – was arranged by Bectu’s disabled members’ network committee and introduced by committee chair Ann Jones, who is also Prospect/Bectu president.

Legal officer Frances Cusack kicked off with an overview of the legal framework surrounding the rights of disabled people under the 2010  Equality Act.

Several tests must be met to be defined as a person with a disability, Cusack said.

Individuals have to fit the definition of “having a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day to day activities”.

While some conditions, such as cancer, HIV or multiple sclerosis are covered, many more are not named and evidence has to be provided that the criteria are met.

Cusack also outlined examples recognised in law of prohibited conduct by the employer – direct discrimination, indirect discrimination, harassment and victimisation for raising concerns.

Others include failure to make reasonable adjustments; discrimination arising from a disability; and a ban on pre-employment health questions (with some exceptions).

Tell your employer

She stressed that “an employer will not be subject to the duties under the Act if they do not have knowledge of an individual’s disability, or could not reasonably be expected to know this”.

The webinar heard that rights for disabled workers cover some freelance and other atypical workers, though it is much more difficult for people who run their own companies to bring claims of discrimination.

Protections apply from the first day of work, and claims must be brought within three months of any act of discrimination or dismissal.

Dangerous workplaces

Marion Scovell said the union had seen many issues during the pandemic, initially relating to lockdown and now about the return to work.

According to the law, employees have the right not to be subjected to a detriment or dismissed for “leaving or refusing to attend work, or taking appropriate steps to protect themselves or others where they reasonably believe they are in serious and imminent danger, and the danger could not reasonably be averted”.

She said this provision offers protection against not working in a dangerous workplace. It might also apply to those protecting others in their household.

But it only applies to employees, not atypical workers or freelancers, though “detriment rights” may apply to the latter under EU law.

However, Scovell stressed, there are many caveats and “ifs and buts”, and it is always better for individuals to seek advice from the union or look for a collective solution, rather than walk off the job.

Risk assessments

She stressed the obligation of employers to do proper risk assessments and analyse the risk of COVID-19 in the workplace.

There is no one size fits all solution but employers are obliged to take “reasonable steps” to avoid disadvantage to disabled people or others with characteristics that apply under the Equality Act.

Reasonable adjustments in relation to disability could include:

• Homeworking.
• Change of location.
• Change of hours.
• Alternative duties.

The union has also been advising members on employers’ selection criteria for returning to work, such as who comes off furlough, redundancy, lay off, changes to contracts and recruitment.

Employers should:

• Implement safe systems of work – eg social distancing, staggered hours.
• Provide personal protective equipment to be worn where needed – but this is a last defence and not a solution for all circumstances.
• Consider individual circumstances, as one size does not fit all.

Best practice includes:

• Consulting with unions.
• Communicating with staff.
• Listening to individual needs and accommodating these where possible.
• Doing a thorough risk assessment.
• Implementing changes to workplace and working patterns.

Scovell said the union’s reps had an excellent track record of resolving matters in the workplace. The union was uniquely placed to negotiate and take up collective issues

She concluded that prevention is always better than litigation, though where necessary the union will use the law robustly to fight unfairness and inequality.

• A recording will be available soon. Please email Diane Lockwood at [email protected] if you would like the link, a copy of the PowerPoint presentations or more information about Bectu’s disabled members’ network.