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Covid public inquiry - what employment issues should be examined?

Employment solicitor Ryan Bradshaw discusses the employment and discrimination issues we think should be covered by the upcoming public inquiry into the covid crisis.

Posted on 20 May 2021

The announcement of a public inquiry into the government’s handling of the covid crisis comes while we are still in the midst of dealing with the consequences of both the virus itself and the government response to it. Of course the key issues for any inquiry are always the terms of reference and the make-up of the panel. Without getting these correct the proposed inquiry will follow the route of the various ongoing inquiries that have either lost the confidence of the public or drawn tepid conclusions on crucial issues.

There are hundreds (if not thousands) of issues with government decision making, conduct and guidance that the inquiry ought to be investigating. The below are some of the key issues that have been at the forefront of my mind as the pandemic has rolled on.

Was the guidance for disabled workers and their families sufficient?

The government guidance on shielding and vulnerability varied throughout the course of the pandemic. This left both employers and their disabled employees in a state of flux as to whether they ought to be required to work or not. We need to know why the guidance changed and why it often failed to refer to legal requirements placed upon employers by the Equality Act 2010, which often offered a greater and more readily enforceable level of protection to disabled employees.

Throughout the pandemic those workers living with people who are in the clinically extremely vulnerable group (as defined by the government) have been expected to go to work, despite this expectation clearly putting their clinically extremely vulnerable housemate/family member/partner at risk. We need to know why this level of risk was considered to be acceptable.

Why was the particular impact on BAME workers ignored?

Workers from certain ethnic groups faced particular challenges during the pandemic, with health outcomes for those from ethnic groups who contracted COVID markedly worse than their white counterparts. In addition there are disproportionately less white workers in precarious employment, where the mortality rate is 51 per 100,000 as compared to 24 per 100,000 for those in more secure occupations.

The inquiry ought to look at the government response to this, particularly in light of these issues being highlighted in a Public Health England Report as early as June 2020. The lack of action taken by the government to focus on which ethnic groups might best be protected, given these factors, requires careful analysis.

Is health & safety at work adequately enforced?

At the outset of the pandemic the government guidance was unclear and supplies of PPE were low. This resulted in many frontline workers being required to attend workplaces that put them at an unreasonable risk, contrary to the legal requirements placed upon employers by our health and safety legislation.

This is, perhaps, a consequence of the swiftness with which things unfolded but the issues with health and safety have rumbled on throughout the pandemic. At least in part this has been caused by the lack of enforcement action taken by the Health and Safety Executive, which only sent out notices to employers in 0.1% of the covid related referrals made to them and made no prosecutions. This despite the fact that many people (particularly in manufacturing) continued to be required to attend unsafe workplaces in direct contravention of government guidance. The inquiry should consider whether government funding cuts (of 46%) have effectively neutered the HSE and left workers exposed to unacceptable levels of risk.

Is our social welfare system fit for purpose?

The current social welfare regime in the UK is one of the least generous in Europe. Any workers being required to self-isolate would receive only £95.85 per week Statutory Sick Pay [‘SSP’] if they were too ill to work or unable to work from home and earned over £130 per week. This compares to £278 that would be earned if an employee was being paid the national minimum wage and working a 35 hour week and is significantly less generous than the 100% of pay for six weeks that German workers receive when they take sickness absence.

For those who earn less than £120 per week there is no entitlement to SSP and due to the vagaries of Universal Credit they would have to go through a Kafka-esque application process then wait five weeks for their first payment which works out at a meagre £95.03 per week. The government began to take note of this in August 2020 when it offered people in this position, in a limited number of areas, extra payments of £13 per day while they isolated. This was too little too late and only applied to one in eight workers who were required to self-isolate.

Due to the insufficiency of our system of social welfare for many of the 8.4 million working age adults living in poverty the only option was to continue to attend work despite being unwell. This is an issue that has been ongoing for some time but has been thrown into sharp relief during the course of the pandemic. The inquiry should focus on whether our present social welfare system is capable of fulfilling the social contract between the UK government and its citizens and whether the low levels of payment contributed to the spread of COVID-19 through workplaces and communities.

The answers to these questions may be uncomfortable, but that should not stop them being asked by any inquiry.

Ryan Bradshaw
Discrimination Employment Human rights

Ryan Bradshaw

Ryan advises on human rights, discrimination and employment law

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