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How do I avoid discrimination claims when implementing hybrid working?

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While many workers who participate in homeworking and hybrid working arrangements have enjoyed benefits such as less time commuting, more time with their families, and a greater work/life balance, many are also worried that hybrid working will negatively impact their career development. These concerns are not completely unwarranted; there is evidence that individuals who work from home receive fewer promotions and opportunities for advancement than those who go to the workplace full-time. Employers need to be aware of how they treat hybrid workers and how unequal treatment can lead to discrimination claims; a topic that our Employment Law team review here.

When does discrimination occur?

Indirect discrimination occurs when an employer applies a provision, criterion, or practice (PCP) to their workforce, and that PCP disadvantages staff who share a protected characteristic when compared to staff who do not share that characteristic, and the PCP cannot be justified. Workers who adopt hybrid working arrangements are less “visible” at the workplace and may get less face time with their managers. This may result in them being passed over for promotions, raises, and other career advancement opportunities. Hybrid workers who believe they are more likely to be overlooked may bring a tribunal claim for indirect discrimination. If their claim is successful, there is no cap on the amount of damages the tribunal may award.

Who may be discriminated against?

Workers who possess certain protected characteristics, such as those who are older, female, pregnant, or disabled are more likely to adopt hybrid working arrangements. If those workers feel they have experienced less favourable treatment because of their decision to adopt hybrid working arrangements, they may bring a discrimination claim on the grounds of sex, age, pregnancy and maternity, or disability. The recent tribunal case of Follows v Nationwide Building Society also established that a worker who is not disabled but who works from home to take care of a dependant who is disabled may bring a claim of associative indirect discrimination if they believe they have suffered less favourable treatment for their decision to work from home.

What can employers do to reduce the risk of discrimination?

You and your management team should first understand how unconscious biases against hybrid workers can effect decision-making when it comes to career advancement, and then take steps to ensure that hybrid workers are given equal opportunities. Include as part of your equal opportunities policy a statement that workers who work from home will not be treated less favourably and will receive equal access to training and promotions as those who work full-time at the workplace.

When making recruitment and promotion decisions, publicise clear, objective criteria for the role. Ensure that decision-makers apply the criteria fairly and that candidates are not penalised for adopting hybrid working arrangements. Document how recruitment and promotion decisions were made and keep records of any evidence that was considered, such as previous performance reviews. This will help reassure workers that your recruitment process is fair, and help you justify your decision if a discrimination claim is ever brought.

Another concern expressed by hybrid workers is that they will lose informal opportunities to learn from their peers and senior workers. Employers should therefore try to create socialised learning opportunities where all workers can socialise and learn from their peers in a more natural, informal setting. You should also provide all the necessary IT equipment and support so that workers can properly communicate and collaborate with their colleagues when working from home.

Employers should also ensure they are not expecting too much from their hybrid workers. Individuals who work from home may feel like they are “always on” or that they are expected to work in excess of their contracted hours. These added pressures can lead to increased stress and burnout, which may in turn affect the workers’ performance or make them more likely to go off sick. Refrain from calling or emailing workers outside of their normal working hours, and encourage them to log-off and disconnect at a reasonable time.   

Even as restrictions ease and workers once again move back into the workplace, for many businesses a form of hybrid working is likely to become the norm. Employers must therefore be aware of the risks of discrimination claims and how to mitigate them. If you have questions about your responsibilities to hybrid workers, or if you are concerned about potential discrimination claims, contact our Employment Law Team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.