Opinions

Coronavirus (COVID-19): the equality response

Written by: Scotland Legal Team, Equality and Human Rights Commission Scotland

Published: 27/07/2020

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The Equality and Human Rights Commission Scotland has concerns about COVID-19 and responses being taken to it.

The equality and human rights implications of the coronavirus pandemic stretch far and wide. It has triggered a global public health and economic crisis that is significantly affecting all areas of life for everyone.

As the UK’s equality body and an ‘A’ status National Human Rights Institution (we share our mandate to promote and protect human rights with the Scottish Human Rights Commission (SHRC)), we are concerned that COVID-19, and the responses to it, may be having a direct and disproportionate impact on some groups, and making existing inequalities worse. This article highlights some of our main concerns in the areas of health and social care, living standards, work, access to justice and education. These concerns are set out in more detail in our response to the Scottish Parliament’s Equalities and Human Rights Committee’s inquiry into the impact of the COVID-19 pandemic (this link will take you away from our website). This article outlines how we will use our unique mandate to help and support people with different protected characteristics who are disproportionately adversely affected.

Health and social care

COVID-19 is putting unprecedented pressure on Scotland’s integrated health and social care system. According to the latest National Records of Scotland figures (published 8 July 2020) (this link will take you away from our website), more than three quarters of all deaths involving COVID-19 were of people aged 75 or over; 46% of all deaths occurred in care homes. Furthermore, recent data published by the National Records of Scotland (this link will take you away from our website) show that, between 12 March and 14 June 2020, deaths among people in a South Asian ethnic group were almost twice as likely to involve COVID-19 as deaths in a White ethnic group. Concerns have also been raised about the impact that the coronavirus pandemic is having on access to non-COVID-19 healthcare, not least in relation to mental health services and access to medical treatment for trans people.

Alongside other equality and human rights organisations, we are providing advisory support to the Scottish Government’s Chief Medical Officer’s Directorate to inform its ongoing review of the Clinical Advice, and Ethical Advice and Support Framework. We have highlighted the need for obligations under the Equality Act 2010 to be incorporated into guidance, to support frontline staff when making challenging healthcare decisions while fulfilling their legal duties. In particular, we have underlined that assessment tools, such as the Clinical Frailty Scale, must not be used to make decisions about access to critical care in a way that results in unlawful discrimination.

In relation to social care, we have been concerned to hear reports of reductions and removal of social care packages. While the Scottish Government’s announcement of additional funding for social care (this link will take you away from our website) is welcomed, we will continue to monitor the withdrawal of social care and, in particular, any resulting disproportionate impact on disabled people and unpaid carers. In this respect, local authorities are still bound by the public sector equality duty (PSED), though we have we have reviewed our approach to enforcing compliance (this link will take you away from our website) with the specific duty reporting obligations in 2020. This means that non-discrimination, the advancement of equality and promotion of good relations must be integrated into decision-making processes on how to allocate resources for social care. We have called on the Scottish Government and the Care Inspectorate to carry out effective, ongoing scrutiny and oversight of the provision of care. To this end, we have written jointly with the SHRC to offer our support to the Care Inspectorate.

Work

Many employers are facing difficult decisions relating to the way employees work, those self-isolating, and redundancy. To assist employers, we have published guidance to ensure that equality obligations continue to be taken into account (this link will take you away from our website) when making staffing and other employment decisions, as well as reasonable adjustments for disabled employees. Women in particular have been disproportionately affected by the coronavirus pandemic, for example through comprising the majority of health and care workers, and because they take a greater share of the childcare responsibilities. We are also aware of concerns relating to pregnant workers and those on maternity leave, and have published guidance for employers on their duties (this link will take you away from our website).

We our response to the Scottish Government’s Advisory Group on Economic Recovery (this link will take you away from our website) call for views. In particular, we noted that inclusive, flexible workplace practices which reduce disadvantage and benefit employees not only enable new ways of working but may help businesses better withstand the challenges posed by crises of this nature. We have long called for flexible working to be the default (this link will take you away from our website  and for it be a day one right for workers.

Living standards

The number of food-insecure adults in Britain is estimated to have quadrupled (this link will take you away from our website) since social distancing measures began. Disabled and older people, and those with health conditions, are at heightened risk of food insecurity. We have contacted the British Retail Consortium (this link will take you away from our website) about our concerns that disabled people are struggling to access food and other essentials in supermarkets. It is essential that retailers meet their legal obligation to make reasonable adjustments for disabled people under the Equality Act 2010, and in line with the rights of disabled people to live independently.

Education

With the cancellation of exam diets in schools and colleges across the UK, students’ grades will instead be informed in part by assessments made by teachers. We have raised concerns with the Scottish Qualifications Authority (SQA) about the potential for bias in the estimating process, and the need to consider the specific needs of pupils with protected characteristics in the development of alternative arrangements. We have informed the SQA of our expectations about the action needed to ensure it meets its PSED and other equality obligations.

At the end of April, we reviewed the information on local authority websites about additional support needs (ASN) provision during the pandemic, and found that 18 local authorities had not published any information. From our meetings with organisations representing children and young people, we also understand that the level of provision of support varies widely across local authorities. This has left many pupils and families with no, or limited, access to educational support during the pandemic.

The Scottish Government plans for schools to return full-time in August. However, councils are preparing blended learning models as a contingency plan. It is critical that education provision meets the specific needs of pupils with ASN and those with particular protected characteristics, including disabled pupils and pupils from ethnic minorities who need support to overcome barriers to learning. Furthermore, a greater focus on online or digital learning will exclude those who do not have the necessary technology available at home.

Access to justice

We are concerned about the risk of domestic abuse and violence against women and girls during the pandemic, with third-sector organisations reporting an increase in their caseload. We are represented on the Independent Advisory Group on Police Use of Emergency Powers and have raised the issue of domestic abuse, recommending that the Scottish Government and Police Scotland continue to give public assurances that these crimes will continue to be addressed at both a national and local level. We will also be publishing new guidance for employers in relation to domestic abuse and coronavirus.

The Scottish Courts and Tribunals Service has acknowledged that social distancing requirements will lead to a greater emphasis on digital and remote business solutions, reducing the number of people in court and tribunal buildings. This is an understandable response. However, our recent inquiry looking at access to justice for disabled accused in the criminal justice systems in Scotland, and in England and Wales, found concerns about the ability of some people – particularly those with certain impairments or conditions, such as a learning disability, autism spectrum disorders and mental health conditions – to participate fully in proceedings where video and phone links are used. We have published our full report of the inquiry (this link will take you away from our website). In July 2020, we hosted a webinar with a guest panel which explored the risks and opportunities for equality and human rights with the expansion of remote hearings in the justice system.

Conclusion

The coronavirus pandemic has highlighted existing inequalities in our society and our economy, and arguably made many of them worse. As we move through the different phases of the Scottish Government’s route map for easing restrictions, it is anticipated that many of the challenges highlighted in this article will persist, and that new ones will arise. It is likely that some of the solutions proposed to help facilitate social and economic recovery will have a disproportionate impact on people with protected characteristics, not least in relation to digital solutions to work, access to justice, and education. Looking to the future, we will continue to work with other organisations to identify and monitor equality and human rights issues resulting from the pandemic. We will strive to offer advice and expertise to ensure that equality and rights considerations are embedded in decision-making at a national and local level.

This article first appeared in the Scottish legal eBulletin of the Equality and Human Rights Commission, which you can sign up to online (this link will take you away from our website).

The Equality and Human Rights Commission want to hear about breaches of equality or human rights law in relation to coronavirus. Please get in touch if you come across a case that you think we might be able to support or assist with, or an issue that we might be able to help resolve using our range of powers. We can also offer advice to advisors (though not individuals) in relation to equality issues.

By email: legalrequestscotland@equalityhumanrights.com

By phone: 0141 228 5951

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