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Summary: Empirical data suggest that people from Black, Asian and Minority Ethnic (“BAME”) backgrounds are being disproportionately affected by Covid-19 and, on Wednesday 29th April 2020, NHS England gave sensible and important interim guidance to Hospital Trusts, pending an investigation by Public Health England.

Some Trusts are seeking to protect BAME staff with measures including removal from the front line. This blog examines whether these well-intentioned measures are lawful.

Background: While about 14% of the UK population in the 2011 Census were from a BAME background, they make up about 34% of critically ill Coronavirus patients, according to an April 2020 NHS Confederation briefing Between 2017 and 2019, only 11.6% of critically ill viral pneumonia patients were from a BAME background. The same pattern is seen in the US. There is something about Covid-19 that disproportionately affects BAME people.

We are all under attack – but this time, our foe is not a country, a terrorist group or a person. Nor is it a predator. Chillingly, it is not even alive. It is a brand new tiny packet of genetic material which has only a transient existence and cannot reproduce itself – fooling human cells into making copies of it. The soldiers in this war are disproportionately made up of the very people who appear ethnically most vulnerable to it: 44% of UK doctors, and almost 22% of all NHS staff, are from BAME backgrounds. In London, BAME staff make up almost 45% of all NHS Trusts’ staff.

Witness the faces shown on daily news reports of the healthcare professionals who have succumbed to Severe Acute Respiratory Syndrome Coronavirus 2.

Some members of the BAME community have a greater incidence of diabetes, asthma, cardiovascular disease and hypertension. These co-morbidities are believed to be the risk factors for poor outcome following coronavirus infection.

Those from the BAME community are more likely to live in multi-generational, multi-family households and in areas of greater population density. They are therefore more likely to be at risk of becoming infected with the coronavirus, and less able to socially isolate effectively.

The BAME community therefore appears to be at a greater risk because of (i) a greater propensity to particular co-morbidities, and (ii) reasons relating to social demographics.

Perhaps there is also an unknown genetic factor at work. Remember that it appears that males are twice as likely to succumb to Covid-19 as women and – that, broadly speaking, the older you are, the greater the risk of the disease. There is no evidence of genetic responsibility for Covid-19 susceptibility: see this piece in The Guardian by Professor Nishi Chaturvedi, Director of the MRC Unit for Lifelong Health and Ageing at UCL. However, the possibility of an unknown genetic factor has not been ruled out in the NHS interim guidance.

See this recent briefing from the NHS Confederation, setting out broadly the above.

The Department of Health and Social Care has asked Public Health England to investigate what lies beneath this.

Guidance from NHS England: On 29th April 2020, the NHS Chief Executive, Sir Simon Stevens, and its Chief Operating Officer, Amanda Pritchard, wrote to Trusts, setting out guidance for the second phase of the NHS response to the pandemic. On page 3, they said this:-

The pressure on many of our staff will remain unprecedented, and they will need enhanced and active support from their NHS employers to ensure their wellbeing and safety.

- As set out in our letter of 17th March, NHS organisations should continue to assess staff who may be at increased risk - including older colleagues, pregnant women, returnees, and those with underlying health conditions - and make adjustments including working remotely or in a lower risk area. Educational material, training and appropriate protection should be inclusive and accessible for our whole workforce, including our non-clinical colleagues such as cleaners and porters.

- Emerging UK and international data suggest that people from Black, Asian and Minority Ethnic (BAME) backgrounds are also being disproportionately affected by Covid-19. Public Health England have been asked by DHSC to investigate this. In advance of their report and guidance, on a precautionary basis we recommend employers should risk-assess staff at potentially greater risk and make appropriate arrangements accordingly."

Putting the guidance into practice: The above guidance is sensible, but we can foresee potential conflict between the anti-discrimination provisions of the Equality Act 2010 and some measures which may be adopted when putting the guidance into practice.

There has been press reporting which suggests that an NHS Trust is prioritising BAME staff and their families for testing for coronavirus and for fit-testing of FFP3 masks, as well as reporting that:-

“NHS staff from black, Asian and minority ethnic backgrounds will be given different roles away from the frontline under plans to reduce their disproportionately high death rate from Covid-19."

It is important to read news reports with a degree of care and the authors make no comment on any specific examples which have been reported in the news media, but if it is the case that any NHS or care sector staff are re-deployed on the grounds of their racial group there may be trouble ahead.

Analysis: To start, it is clearly sensible to ensure that BAME staff and those with specific vulnerabilities have good access to information and advice about the risks to them as well as on the proper use of PPE.

These sorts of steps would likely fall within the permissive positive action regime introduced by s.158 EqA, which provides as follows:-

(1) This section applies if a person (P) reasonably thinks that—

(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic,

(b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it …

(2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of—

(a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage, [or]

(b) meeting those needs, ...

Paragraphs 511 – 517 of the Explanatory Note to the Act make clear that positive action (which is voluntary, not compulsory) is not ‘positive’ discrimination (which is unlawful). The Explanatory Note gives these two examples:-

The first of these examples is difficult. How could it be justified to exclude an underperforming black girl from such supplementary classes? What if the school ran supplementary maths classes for all underperforming pupils but later restricted them exclusively to white male pupils. Surely that would be unlawful, even though it finally resulted in the state of affairs set out in the Explanatory Note. The difficulty is illustrated by the following example of unlawful sex discrimination contained in the Equality and Human Rights Commission Technical Guidance for Schools (§7.12):

“A primary school analyses its data and finds out that boys’ literacy levels are lower compared to girls’ overall. The school decides to meet its aim of increasing boys’ literacy by running additional literacy classes for all boys, adopting different learning styles and more intensive support for pupils. This is unlikely to be a proportionate means of achieving a legitimate aim. It would involve less favourable treatment of female pupils who are underachieving, and would not meet the appropriate and necessary test, since not all boys are underachieving in literacy”

The second example is less controversial, and more relevant to the hospital Trust decision making at issue here. The action taken is positive, in that it is intended to spread awareness among a group who, as a cohort, have been left behind by other means of information sharing. Those who are also at risk of cervical cancer but not within that cohort are not less favourably treated, as they have access to the same screening programmes.

S.158 EqA clearly envisages providing something additional to one racial/gender group, rather than taking anything away from anyone else. It is vitally important to recall that s.158(2) EqA requires that the action taken be a proportionate means of achieving the aim of enabling persons who share the protected characteristic to overcome or minimise the disadvantage which they suffer connected to the characteristic. In the example above, the local cancer screening awareness campaigns for lesbians would be a proportionate means of achieving the aim of enabling or encouraging lesbians to overcome or minimise the disadvantage caused by their being less likely to be aware lack of cervical and breast cancer risks and national screening programmes.

Applying that analysis, the authors consider that it would be lawful to proactively provide clear information specifically to BAME staff on how to access testing and to proactively offer fit-testing of FFP3 masks, if testing and fit-testing were available to all. It may be that that is what is taking place in the Trust which is the subject of the above report. This would be an example of a proportionate means of achieving the aim of enabling BAME staff to minimise the disadvantage which they suffer of being more at risk from Covid-19. There will be many other steps which may be taken which would achieve the same aim, such as information sharing and providing, instruction and guidance.

However, the authors consider that offering testing to BAME staff which would not be available to non-BAME staff (as opposed to, say, facilitating testing that is available to all staff) would be likely to amount to treating non-BAME staff members less favourably than BAME staff members (see s.13(1) EqA), since the non-BAME staff would not be eligible for the same test. If it could be viewed through the lens of s.158 EqA, justification of this action would be difficult, having regard to the importance of the disadvantage to which the non-BAME staff would be subject.

It is perfectly lawful to treat disabled employees more favourably than non-disabled employees are, or would be, treated (see s.13(3) EqA). Furthermore, employers are under a duty to make reasonable adjustments to remove any substantial disadvantage suffered by those workers with disabilities (see ss. 20, 21 & 22 and Sch 8 of the Equality Act 2010 (“EqA”)).

In the context of Covid-19 risk, that might mean moving a person with a disability which is known to make them significantly more susceptible to the coronavirus away from the riskiest areas or procedures (e.g. ITU/intubation/CPR). The person with that disability could be a BAME worker – but that would not be reason for the treatment in this example.

Note also that an NHS employer could provide more favourable treatment to older staff on grounds of their age (insofar as it was a risk factor for complications of Covid-19), so long as that more favourable treatment was a proportionate means of achieving a legitimate aim (see s.13(2) EqA). An example might be staff members over 70, an age group which is specifically recognised in the coronavirus legislation and the wider response as vulnerable.

Re-deploying BAME workers from frontline roles, as is suggested in the Guardian article above (noting that no specific example has (to date) been given of a Trust actually doing this) seems to us to be open to challenge if any part of the reason for re-deployment is race.

To give a practical example, a white nurse (aged under 70 and with no relevant disability) might not wish to work in the high risk ITU environment but he might be required to do so in order to make way for a comparable BAME nurse (also under 70 and with no relevant disability) to be relocated elsewhere. Being required to work in the ITU, when a comparable BAME nurse would not be, would be likely to amount to unlawful direct race discrimination, since the reason for the difference in treatment is the difference in race between the two nurses. We consider that a Trust’s reliance on the permissive positive action regime in this example would be open to challenge.

Remember that, in a putative direct discrimination case, the law requires that the comparison of the cases of the alleged victim and the (hypothetical) comparator involve “no material difference between the circumstances relating to each case” (see s.23 EqA). Thus, if the only reason for the different treatment is that the white nurse required to work in the ITU is healthy while the non-white nurse who is not so required was a diabetic colleague with high blood pressure and severe asthma, there will be no race discrimination because the difference in treatment is based on the health conditions and not in any way upon race. However, a difference in treatment which is significantly influenced by race, is discriminatory. Race does not have to be only, or even the main, reason for the difference in treatment.

The reverse is also possible. It is quite possible that a BAME member of staff will complain that they have been taken off the frontline of the response to this enormous crisis and moved into a less prestigious, challenging, interesting and/or rewarding role. A Consultant Anaesthetist, for example, may object to redeployment to routine, non-Covid-19, Casualty Department duties.

The law is littered with examples of well-intentioned, but unlawful, discrimination.

Ministry of Defence v Jeremiah [1980] QB 87, concerned 12 quality examiners working at an MoD ordnance factory working on a rota system. 8 were men and 4 women. The shops which the examiners supervised included three for making colour bursting shells in which the work was particularly dirty, and required the examiners to strip down, put on protective clothing, and take vigorous showers after work. That shower period counted as overtime and there was an "obnoxious payment" of 4p an hour for work in the colour bursting shops.

While overtime work was entirely voluntary, male examiners volunteering for overtime had to work stints in these 3 shops, while female overtime volunteers were never required to work there. There were, in fact, no separate shower and protective clothing facilities for female examiners.

In Jeremiah, the claimant was a male quality examiner who claimed that the requirement that male quality examiners who volunteered for overtime had to work stints in the colour bursting shell shops, while their female colleagues did not have to, amounted to unlawful sex discrimination.

Lord Denning MR started his judgment with these words (perhaps acceptable for judges in 1979):-

A woman's hair is her crowning glory, so it is said. She does not like it disturbed: especially when she has just had a "hair-do." The women at an ordnance factory in Wales are no exception. They do not want to work in a part of the factory - called a "shop" - which ruins their hair-do."

He described the claimant thus:-

Now Mr. Jeremiah has little regard for chivalry or for the women's hair-dos. He is a modern man. He says that there should be equality between the sexes. Either the women should be required to do their stint (in the colour bursting shop), just like the men. Or the men should not be required to do it any more than the women."

But then he demolished the concept of ‘positive’ discrimination in this way:-

“… suppose the position were reversed: suppose that the women (who volunteer for overtime) were required to work in the colour bursting shop - and that the men were not. At once everyone would say that there was discrimination against the women. Now if that be the case, the Sex Discrimination Act 1975 comes in like a lion. It commands us to treat men and women just the same. It says that wherever "woman" is used in the Act we are to read "man" - and vice versa: see section 2 of the Act. Equality is the order of the day. In both directions. For both sexes."

You cannot buy the right to discriminate (e.g. by paying a bonus to those (non-BAME staff) who have to work in ITU) – Lord Denning again:-

An employer cannot buy a right to discriminate by making an extra payment to the men. If he could, it would drive a gaping hole in the statute. All the men would pass through it."

As outlined, a female quality examiner could equally have brought a discrimination claim relating to her inability to do the same (better paid) overtime work and the lack of showering or protective clothing facilities for women. The employers, acting with good intentions, managed to discriminate against men and against women in these different respects.

The example of Jeremiah illustrates the problem here.

And what of men? As mentioned above, men are twice as likely to succumb to Covid-19 than women for reasons that remain unclear. Should men be taken off the front line or given priority access to PPE where stocks diminish?

Potential claims: as will be seen from the above, there is the potential for claims from both BAME and non-BAME staff, depending on the circumstances, should work deployment or PPE allocation be materially influenced by racial considerations.

Employees and workers have the right not to be subjected to detriment for raising concerns in the public interest (“whistleblowing”) with their employer, an MP, or with a responsible body, such as the HSE or, in some circumstances, to others including the media, that the health and safety of an individual has been, is being, or is likely to be endangered. They may bring a claim in an employment tribunal that they have been subjected to detriment, or dismissed, for whistleblowing.

Aside from any discrimination or whistleblowing claim brought after the crisis, there is a risk that an NHS Trust which promulgated a policy of permitting or requiring BAME staff not to work in ITU etc., fast tracking their testing or prioritising them over non-BAME staff for PPE, would face a claim for judicial review of such a policy on the grounds that it was unlawful, being discriminatory.

The appropriate approach: As NHS England have said, there is a need to risk assess all those staff who may be at increased risk. Reasonable adjustments may be necessary for disabled staff, including offering them work which is less risky. Other staff at risk may also need to be provided with accessible information and, potentially offered different work.

Older staff, such as over-70s returners, may be kept away from riskier work being in a much greater risk category.

BAME staff should not be treated differently, although they can be provided with specific, targeted, information on the risks, the risk factors and on the testing and PPE fit testing which is available to all.

Overall, the key is that staff be informed of risks and options, properly consulted about those risks and options and empowered to raise concerns where they feel that something is going wrong, such as adequate PPE not being available. That is true at the best of times. It is no less true in the worst of times.