Posted on 16th May 2020

If you have been furloughed or you believe that you should have been furloughed, you will know that the ‘Job retention scheme’ has been introduced to protect employment by ‘furloughing’ employees who would otherwise have been ‘redundant’ for reasons connected to the Coronavirus and the Government lockdown measures. Discrimination issues may arise where the Employer has decided to keep the business going by using a skeleton workforce.

Selection for the Furlough

 

The selection of roles to ‘furlough’ should be a genuine exercise in retaining the employment of those who would at the point in time that you are furloughed, be otherwise made redundant.

The Employer should have used an objective selection matrix, just in the same way as making redundancies, where Employees are scored against the criteria. During the consultation process, you may have put forward either your objections or reasons for requiring furlough.

It might be that you feel that in the selection process of ‘furlough’ that you have been discriminated against. It is unlawful for your employer to discriminate against you by reason of a protected characteristic.

It might be that you have been discriminated against because you have not been selected for furlough. This may occur when you have given reasons during a consultation as to why you wish to be placed on furlough leave.

Calculation of the Furlough Amount

 

And/ or alternatively, your Employer might have calculated your furloughed payment, in a manner that you consider to be discriminatory.

All qualifying employees will be entitled to statutory redundancy. The Government has a useful site that allows you to calculate what that might be – follow the link:

https://www.gov.uk/calculate-your-redundancy-pay

Some employers have enhanced redundancy schemes. You need to check with your employer if one applies to you.

What is a Protected Characteristic?

 

A protected characteristic is Age, Disability, Gender reassignment, Marriage and Civil Partnership, Pregnancy and maternity, Race, Religion or Belief, Sex and Sexual orientation.

If your protected characteristic is either a physical or mental health disability, you may have the additional protection right, against being put at a disadvantage because of something arising as a consequence of your Disability.

By way of example, ‘something arising as a consequence of your Disability’, could be sickness absence.

How does Discrimination occur?

 

Discrimination can be direct or indirect.

Direct Discrimination may occur in the process adopted for furloughing or when someone is selected for furlough, because of a protected characteristic. For example, you could have been selected because you are pregnant or are on maternity leave and due to return to work, or because you suffer from a Mental Health disorder such as depression.

Or in the case of religious discrimination, it might be that you are Muslim and have informed your Employer, that you have been fasting during Ramadan and that then became a reason to place you on Furlough.

For example, in the case of direct discrimination for non-selection, this could occur if employees who do not have care roles for the Disabled are not selected for furlough leave ahead of those that do.

Indirect Discrimination may occur because a certain selection criteria has been used for furloughing that puts those that have a protected characteristic at a disadvantage. This could occur, for instance, if all the persons selected are over a certain age or all the persons selected are part-time workers, who are largely women.

There may be a defence open to the Employer. If in the process or procedure the selection in question is necessary to achieve a certain aim, the benefits of which outweigh the discriminatory impact and that there was no other way of achieving that aim. Costs to the business alone are unlikely to be a lawful justification for indirect discrimination. However, this could arise in the case of vulnerabilities to Covid19.

What Evidence?

 

The selection criteria and the scoring matrix used could be evidence that you have been discriminated against. For example, the use of the selection criteria of attendance days at work could result in discrimination against those with Disabilities or those caring for those with Disability.

Note: This blog does not constitute legal advice. If you believe you have been discriminated against, you should seek legal advice from Novate.