Employers warned over redundancy selection mistakes and ‘benevolent bias’

Out-Law News | 19 Nov 2020 | 12:43 pm |

Amy Hextell tells HRNews that employers are making ‘basic mistakes’ in their decision-making where employees’ mental health is concerned.
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  • Transcript

    The government has updated its guidance for the public on the mental health and wellbeing aspects of Coronavirus. It was published the day before England was put into a second lockdown on 5 November and recognises that this is going to be a very difficult time for many people. The guidance highlights how people may become frustrated, lonely and anxious working from home, or being furloughed, and how everyone reacts differently to these challenges. Whilst it is not aimed specifically as employers the guidance is nonetheless helpful, we think, in that it provides a lot of useful information about certain groups with additional mental health needs and those facing specific health issues. That is especially important of employers to bear in mind given the duty of care owed to every individual and, also of course, the disability discrimination angle to this. So whilst this guidance doesn't deal with the employer's legal duties as such, it is definitely relevant when it comes to what employers should be doing to meet their obligations. The challenge for employers, of course, is to make sure they don’t take their eyes of that particular ball when their focus is, understandably, mainly on keeping costs down and keeping the business viable until life gets back to normal, or close to normal. That often means taking decisions, often in a short time frame, about who to put on furlough leave and, unfortunately, in many cases, who will be selected for redundancy – many of whom are the subject of this guidance of course. As you would expect we are advising on all of these issue every day and I was made aware of a couple of issues around this which we though worth flagging up for you – traps which employers have fallen into as a result of failing to juggle all these balls successfully. Amy Hextell is one of our team advising on this. Amy joined me by video-link from Birmingham:

    Amy Hextell: “I think it is fair to say that over the last few months employers have had to react very quickly to lots and lots going on which affects their workforce and I think this has meant that in certain circumstances employers are forgetting some of the basics of what can often be quite complex employment law issues that underpin all of this change. So unfortunately, that's meant that as employment lawyers we've seen a number of really quite straightforward, or basic, types of mistakes, or pitfalls, that employers are falling into as a result, I think probably reacting so quickly to change. The first of those is in relation to selection for redundancy, and in particular furlough, which, of course, is something new that employers are having to deal with for the first time this year and particularly in the context of employees with mental health difficulties or disabilities. Employers have sometimes fallen into the trap of forgetting that it could be discriminatory to select people either for furlough or for redundancy based on a disability that they have. It's fair to say, I think, that we don't often see employers very obviously selecting employees for those reasons, but I think the more subtle aspects of this can be where, for example, employers make selections based on absence records, for example, or even poor performance, without recognising that that poor performance may be influenced by somebody's disability. So that's something we've seen trip employers up a few times over the course of the last few months and, as I say, probably as a consequence of having to deal with things very quickly and forgetting some of the basics. Something slightly different that we've seen but equally a bit of a danger for employers is where they fall into the trap of exercising what can be described as ‘benevolent bias’. That's a situation where somebody makes a decision on behalf of somebody else, with the very best of intentions, so it's done absolutely with kindness at the heart, but it is done without taking any input from the person that it's affecting and it’s done usually based on an assumption. So in the context of disability and mental health, for example, that might be an employer picking up a new project during this time where their employees are working from home or under, you know, a lot of stress and pressure, which is causing lots of people anxiety, but that employer may decide that somebody in their workforce they know who has anxiety and suffers from that quite badly, they might make the decision not to ask that employee to be involved in that project, with the best of intentions, because they don't want to add to their workload or cause them stress but actually, they've made that decision without speaking to that that individual at all. Again, that in itself could be discriminatory, even where the intention has been very good. So it's these sorts of things that we're seeing employers trip up on over the course of the last few months. Now in terms of addressing those issues, and making sure that those mistakes aren't happening, I think what we would advise is, firstly, to perhaps slow down if you can, so rather than racing into decision-making, or making assumptions, taking a step back and remembering the basics, obviously taking  legal advice when necessary. But also, I think more than ever, both from a legal standpoint but also from the standpoint of employee mental health, it’s incredibly important to be having discussions with your employees frequently, you know, checking in with them regular one to ones, which then hopefully avoids these kind of situations happening because the employer has got the information they need to make informed decisions."

    Finally, the other angle to this is the employer’s duty to make reasonable adjustments under the Equality Act. We notice Personnel Today has recently covered this asking the question what is reasonable in the face of Covid-19 recognising that the pandemic has thrown up a host of other risk factors and potential avenues for discrimination that weren’t there before. We will hear more from Amy Hextell on that subject next week.