The media is currently saturated with reports concerning the absence of adequate Personal Protective Equipment (‘PPE’) in clinical settings.  To date, commentators have understandably focused on the extent to which employers may be breaching health and safety legislation by failing to provide staff with PPE and whether staff are protected under whistleblowing legislation if they speak out. Moreover, this month two doctors launched an urgent legal challenge to guidance by NHS England on PPE.  In this blog, Dee Masters and Jen Danvers look at a different aspect to the PPE debate, namely whether there is scope for sex discrimination claims arising from equipment which has been designed to fit the average man rather than their female colleagues.

Context

A recent Guardian article raised the issue of NHS staff, 75% of whom are female, having to use PPE designed for average male bodies.  The article draws on guidance by the TUC and a book by Caroline Criado-Perez, “Invisible Women”, which addresses not just sexism in PPE, but design more generally – it seems that a huge number of products are designed for the average male: phones, voice activation software, sports equipment, and, cars, to name but a few.  Criado-Perez argues that sexism in design has a significant detrimental impact on women meaning, for example, that they are 47% more likely to be seriously injured than a man in a car accident, or that their work is significantly hampered by the very PPE that is meant to protect them.  Indeed, Dr Helen Fidler, Deputy Chair of the BMA UK Consultants Committee, recently explained on BBC’s “Woman’s Hour” that 7 out of 10 women do not have adequately fitting PPE (especially face masks) which creates discomfort and may increase the risk of women contracting Covid-19 in a clinical setting.

Indirect sex discrimination: employment

In workplaces, female workers could challenge employers who provide ill-fitting PPE by alleging indirect discrimination on the basis that providing equipment which fits people with the bodies of, to use the Guardian example, 6ft 3in rugby players, disproportionately disadvantages women as they are less likely to be able to comfortably and safely wear larger sized items. As discrimination lawyers know, prima facie indirect discrimination can be objectively justified and we anticipate that employers may argue that purchasing gender-specific PPE from manufacturers is difficult. Ultimately, these types of arguments would have to be balanced against the discomfort experienced by some, the health and safety risks posed to women and the extent to which employers have sought to commission and source more appropriate equipment.

Indirect sex discrimination:  suppliers

The routes to challenging gendered design do not begin and end with a claim against the employer.  Providers of PPE in the UK are providers of goods and therefore are covered by s.29 Equality Act 2010. Section 29 requires that providers of goods do not discriminate against a person requiring their goods; this includes indirect sex discrimination.  

Unlike in the case of a claim against the employer, we envisage that it may be harder for manufacturers to justify an approach to designing and providing goods that disadvantages women, especially when there are so many women who work in a clinical setting meaning that there will be a clear demand for appropriately sized PPE. 

Compensation

Claims against employers or manufacturers of male-focussed PPE could end up being quite valuable for claimants where they have been injured as a result of poor-fitting PPE and/or had to stop work because suitable equipment was not available. Moreover, there is always scope for mass claims by numerous claimants, akin to equal pay litigation, which would lead to significant exposure for employers and manufacturers.  

29 April 2020

Cloisters offers expert advice in relation to discrimination claims in both the employment context and a broader goods, facilities and services setting.

Other blogs in this Covid-19 series are available here:

Covid-19: Critical workers refusing work – What if everyone is being reasonable?   Schona Jolly QC 26 March 2020
Covid-19: Pay for working parents forced to look after their children Rachel Crasnow QC 27 March 2020
Covid-19:  Is Facial Recognition Technology in the workspace the answer to social distancing or discriminatory? Robin Allen QC and Dee Masters 31 March 2020
Covid-19: Legal implications of identifying immune workers Rachel Crasnow QC 1 April 2020
Covid-19: An employer’s guide to homeworking Tom Gillie, Ruaraidh Fitzpatrick and Catherine Casserley 2 April 2020
Covid-19:  Offering blood, toil, tears and sweat: Emergency Volunteers and the Law Declan O’Dempsey and Tom Gillie 3 April 2020
Covid-19: Furlough and job retention: Key issues for Employment Lawyers Danny Dyal 11 April 2020
Covid 19: Furlough Furore: the Treasury Direction and the Coronavirus Job Retention Scheme Danny Dyal 17 April 2020
Case management in the times of Covid-19 Jen Danvers 20 April 2020
Resusciation and the value of a disabled person’s life: Triaging and Covid-19 Catherine Casserley and Declan O’Dempsey 22 April 2022