Pump Court Chambers

Does the on-going COVID pandemic raise issues under the Equality Act 2010?

News, Blog 6th December 2023
Domestic Abuse during COVID-19

NOTHING IN THIS ARTICLE IS INTENDED TO PROVIDE LEGAL ADVICE. All cases turn on their facts, and none of the below commentary is a substitute for formal legal advice.

  1. This post is concerned with the obligations which potentially fall on employers, schools, hospitals, universities, etc. insofar as they relate to the on-going pandemic.
  1. Note that damages for personal injury can be claimed as part of discrimination compensation: Sherriff v Klyne Tugs (Lowestoft) Ltd [1999] EWCA Civ 1663.
  1. Therefore, if a breach of the Equality Act 2010 can be established, then damages could (in principle) be awarded for e.g. a BAME nurse/doctor who acquired Long COVID while working on a ward without adequate mitigations.
  1. Given the high incidence of COVID-19 infections, and the relatively high proportion of infections which result in Long COVID, there are likely to be ever-increasing numbers of potential claimants. A selection of relevant evidence is collated and hyperlinked below.

Relevant Law

  1. The Equality Act 2010 defines “disability” in the following terms:

6 Disability

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

  1. This is likely to be updated in 2024: draft Regulations propose the following:

(2) References in the relevant provisions to a person’s ability to carry out normal day-to-day activities are to be taken as including references to the person’s ability to participate fully and effectively in working life on an equal basis with other workers.

  1. “Indirect” discrimination is defined in s 19 Equality Act 2010:

19 Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3)The relevant protected characteristics are—
age; disability; pregnancy and maternity; race; sex;

  1. Section 21 Equality Act 2010 provides for a remedy in cases of failure to make reasonable adjustments. The duty to make reasonable adjustments itself appears in Section 20 Equality Act 2010.
  1. There is also a “knowledge” limitation for reasonable adjustments – in short, the duty does not arise unless the employer knows, or could reasonably be expected to know, both that the interested disabled person has a disability and that they are likely to be placed at a disadvantage. Schedule 8 Equality Act 2010 provides insofar as is material as follows:

Part 3 Limitations on the duty

Lack of knowledge of disability, etc.

20(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know—

(b) In any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.

  1. The evidence collated below is relevant to the question of knowledge (and there may therefore be tactical reasons for providing such evidence direct to the person responsible for making adjustments).
  1. As regards disabled persons, the distinction between the duty under s 19 and s 20 is that indirect discrimination law requires the claimant to establish group disadvantage, whereas the duty to make reasonable adjustments is only referable to the substantial disadvantage suffered by the individual.
  1. The scope of s 19 is, however, much wider than the scope of s 20 in that it extends protection to (inter alia) the protected characteristics of age, race, and sex, as well as disability.
  1. The case of Essop v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27 sets out the following “salient features” of indirect discrimination at paragraphs 24 & seq:
    1. There is no need to show whya particular PCP puts one group at a disadvantage when compared with others
    2. In contrast with direct discrimination, indirect discrimination requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The prohibition “. . . is dealing with hidden barriers which are not easy to anticipate or to spot.”
    3. The reason for the disadvantage need not be unlawful in itself or be under the control of the employer or provider.
    4. There is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage.
    5. It is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence (paragraph 28 in Essop)
    6. It is always open to the respondent to show that his PCP is justified – but “a wise employer will monitor how his policies and practices impact on various groups and, if he finds that they do have a disparate impact, will try and see what can be modified to remove that impact while achieving the desired result”
  1. The phrase “provision, criterion or practice” (“PCP”) is to be construed widely, so as to include for example “any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions”: see the EHRC Code at Paragraph 6.10 and the decision in Lamb v The Business Academy Bexley UKEAT/0226/15.
  1. As to the phrase “physical feature” in s 20(10), the EHRC Code explains that ventilation (specifically) is a “physical feature”. As a matter of common sense, windows would also constitute a “physical feature”.
  1. Case law has established that “associative” indirect discrimination is actionable: CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (C-81/14) EU:C:2015:480. The claimant need not share the protected characteristic of the disadvantaged group. In essence, it is sufficient for the claimant to show that they suffer a particular disadvantage alongside a disadvantaged group.
  1. That principle is (proposed) to be expressly adopted by addition of a new Section 19A to the Equality Act (again, pursuant to draft Regulations):

“19A Indirect discrimination: same disadvantage

(1) A person (A) discriminates against another (B) if—

(a) A applies to B a provision, criterion or practice,

(b) A also applies, or would apply, the provision, criterion or practice to—

(i) persons who share a relevant protected characteristic, and

(ii) persons who do not share that relevant protected characteristic,

(c) B does not share that relevant protected characteristic,

(d) the provision, criterion or practice puts, or would put, persons with the relevant protected characteristic at a particular disadvantage when compared with persons who do not share the relevant protected characteristic

[. . .]

  1. The reference to a “relevant protected characteristic” of B’s in s 19 Equality Act 2010 should be read so as to apply to employees who are associated with persons with a relevant protected characteristic, hence, if B was in fact placed at a particular disadvantage (compared to persons not associated with disabled persons), then B would have a well-founded complaint under s 19 Equality Act 2010 (assuming no objective justification). An illustration is given in Follows v Nationwide Building Society ET/2201937/18, albeit a first-instance decision and so non-binding. In Follows, the particular disadvantage was that carers for disabled people were less likely to be able to be office-based than non-carers, hence Mrs Follows was at a particular disadvantage on account of her association with her mother’s disability.
  1. Note that the Equality Act 2010 extends protection to, and imposes obligations on, employees and applicants (s 39); contract workers (s 41); barristers (s 47); schools (s 95); and higher education institutions (s 91).
  1. Lastly, there is a question about the ways in which otherwise-discriminatory treatment can be objectively justified. The saving or avoidance of costs will not, without more, amount to the achieving of a legitimate aim: Heskett v Secretary of State for Justice [2020] EWCA Civ 1487 per Underhill LJ – although a need to work within a budget may be a legitimate aim, as may the need to avoid an outcome that is “positively unaffordable”. Hence considerations of cost are relevant, but in a somewhat convoluted manner. We return to that point below.

Personal injury

  1. The case of Klyne Tugs (cited above) was concerned with direct race discrimination, and the principle that personal injury is recoverable for statutory torts in the Employment Tribunal is one of general application. It is well-established that intentional torts are not subject to a test of remoteness: all that needs to be established is that the tort was committed, and that it caused the injury.
  1. The question of whether personal injury claims for non-intentional (“good faith”) torts are subject to a test of remoteness is open to argument following Essa v Laing Ltd [2004] EWCA Civ 2, [2004] ICR 746. A full discussion of this point is outside the scope of this paper: suffice to note that in Essa Pill LJ noted at paragraph 36 that the case before the Court did not involve

“. . . circumstances in which the consequences of an act of discrimination causing detriment need to turn upon an analysis of the intention or motives of the wrongdoer. A sanction against such conduct is required without the need for an analysis of why the act was committed . . .”

  1. The question of causation is outside the scope of this post. This article contains an interesting and detailed discussion for those interested.

Relevant evidence: disadvantage

  1. Of the “relevant protected characteristics” under s 19 Equality Act 2010, the author considers there to be good evidence that disabled persons; ethnic minorities; and older persons are at increased risk of adverse outcomes following COVID-19 infection (both morbidity and mortality).
  1. There is evidence that Long COVID is an often debilitating illness that occurs in at least 10% of COVID-19 infections. Increased risk of COVID-19 infection therefore comes with increased risk of long-term debilitating consequences, even if the initial infection was mild. Indeed most Long COVID cases are in non-hospitalised patients with a mild acute illness. A substantially increased risk of COVID-19 infection therefore comes with a substantially increased risk of Long COVID, even if there is no difference in the likely initial disease severity.
  1. Similarly, there is evidence that repeated infections cause cumulative risk. If the risk of Long COVID is 10% per infection, then the risk of Long COVID after 6 infections is approximately 50%: the calculation is (1 – (1-0.1)^6) = 0.47.


  1. Turning first to “disabled persons”: not all cases of disability will give rise to higher risk: for example, a broken leg which has healed imperfectly might well give rise to disability, but is (one expects) unlikely to carry a higher risk of mortality or morbidity following COVID-19 infection. As explained above, that does not matter: it is not necessary to show that all members of the protected group will experience the disadvantage relied upon.
  1. Table 3 of Chapter 14a of the JCVI “Green Book” sets out categories of persons who fall within “clinical risk groups for individuals aged 16 years and over.” Those categories include, by way of illustration:
    1. Chronic respiratory disease
    2. Chronic heart disease and vascular disease
    3. Chronic kidney disease
    4. Chronic liver disease
    5. Chronic neurological disease (NB this includes individuals on the learning disability register, Down’s syndrome, etc)
    6. Diabetes mellitus and other endocrine disorders
    7. Immunosuppression
    8. Asplenia or dysfunction of the spleen
    9. Severe mental illness (“individuals with schizophrenia or bipolar disorder, or any mental illness that causes severe functional impairment”
  1. Clearly the list is non-exhaustive. Moreover, evidence recently tendered to the UK COVID-19 Inquiry indicates that despite disabled people constituting c. 20% of the UK population, they died disproportionately, comprising six out of ten of those who died of Covid. That factual assertion is “coarse-grained” in that it does not distinguish between different types of disabled person.
  1. That, however, does not matter for the purposes of an indirect discrimination claim: see the fourth “salient feature” of indirect discrimination claims set out in Essop (above).
  1. One might also observe, in passing, that persons with “Long COVID” (defined, for the purposes of this post, as persons who display symptoms more than 3 months after an initial COVID-19 infection) are likely to form part of the group of disabled persons, although the matter is inevitably fact-sensitive.


  1. Pregnancy is acknowledged as a risk factor for severe COVID-19 infection and poor pregnancy outcomes (by the JCVI Green Book Chapter 14a) and “pregnancy” forms part of the “clinical risk groups” for the purposes of the Green Book. The same point is acknowledged by the NHS and by the Centers for Disease Control and Prevention. NB not directly relevant for the purposes of s 19, but a significant point nonetheless.


  1. A study published in early May 2020 by Professor Lucinda Platt at the LSE indicated that almost all minority ethnic groups had higher risks of dying from COVID-19 than the white British majority of a comparable age.
  1. Moreover, minority ethnic groups appear to suffer a further disadvantage related to COVID-19, consisting of (for example) increased rates of self-employment (hence absence of sick pay), increased risk from loss of earnings (due to lack of a financial “buffer”), etc.


  1. Here again the JCVI Green Book (Chapter 14a) is relevant: the JCVI advice (at pages 28 – 29) explains that “[s]ince the end of the spring 2023 campaign, vaccination has become a targeted offer only to those at higher risk of severe COVID-19 . . . [o]lder adults and those in clinical risk groups . . . will be the individuals eligible for vaccination . . .”
  1. The current domestic policy is for vaccination of “over 65s”. However, this is only a policy, and necessarily reflects various trade-offs (cost being one relevant factor). The evidence suggests that the risk of COVID-19 disease severity due to the isolated effect of age increases by age year, with no specific age threshold being observed (hence, the vaccination threshold is not determined solely by the risk which accompanies increased age).
  1. For an indirect discrimination claim, however, there would likely be a difficulty in establishing the age group within which the claimant would fall – any such choice of group being necessarily rather arbitrary. But that may not matter: in most cases it is likely to be true that membership of the “50 years and younger” group is at lower risk than the “51 years and older” group (and so on).
  1. One potential complication is that members of the “65 years and older” group are more likely to be vaccinated than members of the “64 years and older” group. This post does not consider this issue in detail: the salient point is that older persons are at increased risk of severe COVID-19 infection.
  1. Interestingly, one study found that people aged 50 – 60 are at greater risk of Long COVID (the same study notes that women are also at greater risk of Long COVID). A separate study found that the risk of Long COVID (amongst adults) increases with age up to 70 years.


  1. As cited above, women are at greater risk of Long COVID than men.
  1. The same finding has been replicated elsewhere, albeit it appears that female sex is not a risk factor associated with COVID-19 symptoms (i.e. in the acute phase of the infection). It may be – this post does not express a view – that as women are necessarily more likely to become pregnant, there is an element of group disadvantage due to the increased risks of severe COVID-19 infection.
  1. This post leaves to one side, for present purposes, the question of whether there is likely to be any economic group disadvantage, but the point may be worth considering further.

Relevant evidence: COVID-19 transmission and preventative measures

  1. In the early days of the pandemic, the World Health Organization stated erroneously: FACT CHECK: COVID-19 is NOT airborne.
  1. That is now known to be untrue (and indeed has been known to be untrue for years). See for example this article in The Lancet in 2021, this article in the BMJ, this article in Indoor Air. At the end of 2021 the World Health Organization stated that COVID-19 could be transmitted by “long-range aerosol or long-range airborne transmission”.
  1. The relevance of airborne (or aerosol) transmission is that providing clean air (whether by filtration, ventilation, or UV sterilisation) is self-evidently likely to reduce COVID-19 transmission.
  1. This has been demonstrated in practice. For example, Addenbrooke’s hospital trialled HEPA filters in two COVID wards and found that the filters removed “almost all airborne COVID virus”. Following that finding, Cambridge University Hospitals NHS Trust (of which Addenbrooke’s is a part) chose to install 80 air filter machines across the Trust to reduce the risk of COVID. Note that each machine cost the Trust around £5,000 alongside maintenance costs – so the aggregate cost would be in the region of £400,000 alongside maintenance costs. Not an insubstantial figure.
  1. The same move has been taken by East Suffolk and North Essex NHS Foundation Trust.
  1. Increasing ventilation reduces COVID-19 airborne transmission in schools (and indeed can do so quite dramatically with sufficient ventilation levels).
  1. HEPA filtration is also effective in schools.
  1. Upgrading PPE for staff working on COVID-19 wards (from surgical masks type IIR to FFP3 respirators) dramatically. The University of Cambridge reported that

“. . . the introduction of FFP3 respirators provided up to 100% protection against direct, ward-based COVID-19 infection . . .”

  1. Lastly, note that poor ventilation can be identified with the use of CO2 monitors (using CO2 levels as a proxy for exhaled air). The HSE guidance states that:

“CO2 monitors are a useful way to estimate airflow rates. The amount of CO2 in the air is measured in parts per million (ppm). 1000ppm is equivalent to about 10 litres per second, per person.

CO2 levels consistently higher than 1500ppm in an occupied room indicate poor ventilation and you should take action to improve it.”


  1. With these building blocks in place, we can turn to discussion of potential legal issues which are presented by a number of potential features and/or PCPs. A non-exhaustive list of subject areas would comprise:
    1. Ventilation (i.e. both via HVAC and by “natural” ventilation)
    2. Provision of HEPA filters (or failure to provide filters)
    3. Provision of PPE, specifically N95+ masks
    4. Mandates requiring use of masks
    5. Applications to work from home / remote working
    6. Testing


  1. The first question is whether a failure adequately to ventilate could amount to a PCP. Clearly a policy of closing windows would amount to a “practice”, as would a factual practice of closing and/or failing to keep windows open.
  1. More difficult is the question whether the employer “applies to [the employee] a PCP”. It is rather artificial to say that a failure to open windows is a PCP which is “applied” to an employee. The author considers it unlikely that the Tribunal would accept that the failure to open windows is a PCP “applied” to an employee.
  1. What is clear, however, is that a failure to ventilate is capable of amounting to a failure to make reasonable adjustments: ventilation is a “physical feature” within the meaning of ss 20(4) and 20(10) Equality Act 2010 (as the EHRC Code makes clear). We can identify a number of ways in which ventilation could be demonstrably inadequate. Examples might be:
    1. Windows in a building are sealed shut, and the airflow provided by the existing HVAC system is inadequate
    2. Windows in a building are able to be opened, but kept closed due to cold weather (as would commonly be the case in classrooms in the winter)
  1. Clearly, this is capable of placing a disabled person at a substantial disadvantage – that substantial disadvantage being increased risks of severe COVID infection. Note also that people with pre-existing mental and physical health conditions are at increased risk of developing Long COVID, and there is likely to be an overlap between that cohort and the group comprising disabled persons (within the meaning of s 6 Equality Act 2010). It appears that Long COVID is more common in those with another disability (NB the link refers to an article citing ONS statistics, but the reference in the article to the statistics in question appears non-functional).
  1. There may of course be other substantial disadvantages beyond immediate risks to health.

HEPA filters

  1. Installation of HEPA filters is likely to be a reasonable step to avoid the disadvantage to disabled persons. Note that the filters installed by Addenbrookes were at the upper end of the cost bracket for HEPA filters: some commercially-available models run from c. £200 – £600 + VAT.

PPE – N95+ / FFP3 masks or higher

  1. Take a hypothetical NHS Trust as an example. The Trust operates a policy of – for example – providing N95 / FFP3 masks only in wards which are deemed to involve “aerosol-generating” procedures, and either surgical masks (IIR2) or no masks in other areas.
  1. That, it is tolerably clear, would amount to a PCP.
  1. Further, it is trivially easy to show that the Trust applies, or would apply, the PCP both to persons with a relevant protected characteristic and to those without such a characteristic.
  1. The policy would be prima facie indirectly discriminatory insofar as it places staff with relevant protected characteristics (as itemised above) at a particular disadvantage when compared with those who do not share that protected characteristic, by virtue of a) increased risk of infection b) increased risk of severe (acute) infection and c) increased risk of Long COVID.
  1. Could such a policy be objectively justified? Clearly there is cost associated with providing FFP3 masks “across the board”; less so with requiring surgical masks to be worn “across the board”. But there is a corresponding cost benefit associated with reduced COVID infection rates, comprising:
    1. Decreased staff absence (hence decreased need to pay for locum staff to cover shifts while also providing contractual sick pay to the absent staff member)
    2. Decreased clinical demands on the Trust (because decreased levels of patient COVID infections necessarily decrease the clinical burden – patients with COVID are more likely to need clinical interventions than patients without such infection)

Mask mandates

  1. The same points can be made in relation to mask mandates, i.e. policies which require employees to wear masks (or indeed respirators) in certain settings.
  1. Note that a comprehensive mask mandate might also be argued to be indirectly discriminatory in relation to any group which finds compliance with the mandate difficult and/or in relation to, for example, deaf persons who rely on being able to lip-read.

Working from home / requiring attendance in person

  1. Requiring attendance in person is also capable of amounting to a PCP.
  1. As regards indirect discrimination, the issue is likely to be objective justification. Clearly a requirement for some level of in-person attendance will be capable of objective justification: the hypothetical NHS Trust will need staff physically present in order to carry out their clinical duties. But that may not justify an inflexible rule – for example, a BAME consultant may have paperwork to do which can properly be done remotely or from home.
  1. In all likelihood, a policy of requiring full attendance is unlikely to be objectively justified in circumstances where there is no particular reason why e.g. paperwork cannot be carried out remotely.
  1. As regards reasonable adjustments, one might imagine a number of “steps” which could be taken to avoid the substantial disadvantage (increased risk of death or Long COVID), being:
    1. Improving ventilation
    2. Requiring mask-wearing
    3. Improving air filtration
    4. Permitting working from home


  1. As from 2 October 2023, COVID tests are supplied via the “Foundry” (whereas they were previously ordered through UKHSA). The guidance for Lateral Flow devices states that orders for LFDs for NHS use cases ordered through and delivered to NHS Trusts by NHS Supply Chain will remain free of charge to NHS Trusts until 31 March 2024.
  1. The NHS policy from 1 April 2023 states that for symptomatic NHS staff and for staff in NHS-commissioned independent healthcare providers (including return to work testing) is that tests will only be administered for staff “primarily working on wards focussed on treating severely immunocompromised individuals” and that there will be “no return to work testing”.
  1. Whereas symptomatic staff were previously required to take a lateral-flow device test (“LFD”) including for return-to-work testing, the approach from 1 April 2023 is that:

“Symptomatic patient-facing healthcare staff should follow advice for staff with symptoms of a respiratory infection or a positive COVID-19 test result.

Local discretion to expand symptomatic staff LFD testing beyond this recommendation is possible if severe outcomes are identified on other inpatient wards or areas following risk assessment and direction from medical directors, nursing directors or IPC teams

Discretion for return to work testing for staff working on these inpatient wards.”

  1. Clearly the testing policy is capable of amounting to a “PCP”.
  1. In the context of employment (i.e. within s 39 and 83(2) Equality Act 2010) a testing policy could be put a disabled person at a substantial disadvantage when compared with a non-disabled person insofar as it increases the disabled person’s exposure to COVID (or increases the number of uncontrolled outbreaks in the workplace, etc).
  1. Recall the wording of s 20(3) Equality Act 2010:

(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

  1. The question would then become whether it is reasonable to augment testing. That is of course a fact-sensitive question. But it is at least arguable that increased testing (in particular within the discretion expressly afforded to the employer under the current guidance) would be a reasonable step to take to control outbreaks and thereby reduce the risk to disabled persons.

Other matters – discrimination outside of employment

  1. Returning to the question of discrimination: one interesting question would be whether an at-risk service user could complain to a treating NHS Trust that they had been discriminated against contrary to s 29 Equality Act 2010, which prohibits discrimination by a “service-provider”: see for example Paragraph 11.3 of the EHRC Statutory Code of Practice.
  1. Further, NHS England and any NHS Foundation Trust (within the meaning of s 30 National Health Service Act 2006) are “Public Authorities” pursuant to Schedule 19 Equality Act 2010 and hence subject to the public sector equality duty in s 149 Equality Act 2010. Note that the duty is stated as follows (in part):

149 Public sector equality duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

  1. Perhaps significantly, causation (i.e. causation of COVID-related injury resulting from discrimination) may be relatively easy to prove in certain healthcare settings: inpatients, in particular, may have little (if any) exposure outside the healthcare setting.
  1. Note also that “the responsible body of a school” is prohibited from discrimination (in various forms) by operation of s 85 Equality Act 2010 – hence the potential arguments around indirect discrimination and failures to make reasonable adjustments will also apply in the school setting.
  1. Note also that Section 92 Equality Act 2010 (“Further and higher education courses”) provides insofar as is material as follows:

92 Further and higher education courses

[. . .]

(2) The responsible body in relation to such a course must not discriminate against a person who is enrolled on the course in the services it provides or offers to provide.

(6) A duty to make reasonable adjustments applies to the responsible body.

(7) This section applies to—

(a) a course of further or higher education secured by a responsible body in England or Wales;

(b) a course of education provided by the governing body of a maintained school under section 80 of the School Standards and Framework Act 1998;

(c) a course of further education secured by an education authority in Scotland.

(8) A responsible body is—

(a) a local authority in England or Wales, for the purposes of subsection (7)(a);

(b) the governing body of a maintained school, for the purposes of subsection (7)(b);

(c) an education authority in Scotland, for the purposes of subsection (7)(c).

(9) In this section—

“course”, in relation to further education, includes each component part of a course if there is no requirement imposed on persons registered for a component part of the course to register for another component part of the course;

“maintained school” has the meaning given in section 20(7) of the School Standards and Framework Act 1998;

“services” means services of any description which are provided wholly or mainly for persons enrolled on a course to which this section applies.

  1. Section 92 is to be read in conjunction with s 94 (“Interpretation and Exceptions”) but that section can be safely ignored for present purposes.


  1. The Equality Act 2010 offers a broad range of remedies which might be relevant to the on-going pandemic. In particular, there is scope for arguing that employers, hospitals, schools and universities are required to take steps to reduce transmission of COVID-19 and/or to provide a safe environment.
  1. The steps which we have canvassed are referable primarily to the provision of clean air (ventilation and HEPA filtration); the monitoring of air quality (CO2 monitors); the provision and mandated use of adequate PPE (N95+/FFP3 respirators); flexible working arrangements (both to permit persons with relevant protected characteristics to reduce exposure, and to decrease crowding – and hence decrease spread – of COVID); and, where appropriate, increased testing. In broad terms, these are protective steps, or steps to mitigate risk.
  1. Given the potential consequences of COVID-19 and Long COVID on the workforce, the financial interests of schools, universities, hospitals, and employers may be closely aligned with the interests of those who might legally seek protective steps. In terms, reducing transmission is likely to save on staffing costs.

The Pump Court employment & discrimination team is able to advise on individual cases – please contact the clerks for more information.

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