Most businesses are allowing hybrid working but employers are split over its future – two in five decision makers believe they will return to old ways of working. But for those who want staff fully office based there are legal risks – we’ll consider that.
This is research by YouGov commissioned by the CIPD. A poll of 1,006 senior decision makers found that 78% of firms allow hybrid working through either formal or informal arrangements. However, these arrangements may be short lived as employers were split on whether or not the measures will work in the future. 42% senior decision makers said they felt the memory of the pandemic would fade quickly and it would be little time before we reverted to the way we worked before Covid-19, while a similar proportion, 41%, believed the opposite.
Time will tell whether hybrid working will last but we agree with the commentators in this article that very few employers are going to reject it outright. It is now well recognised that hybrid and flexible working are important tools when it comes to attracting and retaining talent, especially important in the current climate.
For the majority adopting hybrid working Ben Willmott, head of public policy at the CIPD, makes a good point. He warns that hybrid working will not be suited to some workers and advised employers to ensure “there is consistency and fairness in how they manage, reward and promote those who can work from home and those who attend the workplace every day”. He also warns there could be ethical and legal considerations for differentiating pay or benefits between those working from home and those working in the office, unless these can be justified. He said: ‘For example, there could be a risk of indirect discrimination, as it’s likely that there will be more people with caring responsibilities, health conditions or disabilities working more regularly from home.’
As we have highlighted previously in this programme, employers insisting that employees return to the office need to be careful. If some people say they don’t want to return employers need to listen to the reasons given. That’s because insisting they must return could amount to indirect associative discrimination.
A reminder. Last year in a case called Follows an employment tribunal decided that requiring office-based working to the disadvantage of employees who care for disabled dependents may amount to unlawful indirect discrimination. Although the case is just a tribunal decision, so not binding, it is certainly possible that other tribunals will take a similar approach. So, in this case the Nationwide’s decision to require senior managers to be fully office-based put the claimant, Mrs Fellows, at a substantial disadvantage because as the principal carer for her disabled mother she had previously only attended the office 2 or 3 days a week and was unable to comply with the new requirement. Back in 2015 the ECJ ruled in a Bulgarian case called Chez that the concept of associative discrimination could in principle be extended to indirect discrimination. The employment tribunal in Follows took the view that the Equality Act must be read in a manner consistent with that ruling. It is an important decision with implications for employers who are relying on policies requiring people to work in a particular location.
So, let’s consider how that case law impacts on employers who want to bring everyone back to the office. Earlier I discussed this with Anne Sammon:
Anne Sammon: “So I think it's sensible to have thought through what your rationale is for imposing any policy that you impose because whether we're looking at objective justification because somebody has brought an indirect sex discrimination claim because you're saying that everyone needs to work from a particular location and not disadvantages women, or whether it's sort of a more associative discrimination type angle, the test is the same. So, I think going back to kind of basic principles and being able to justify why you're imposing a policy is best practice anyway. It’s also quite important, even if we set the law to one side, from a kind of employee relations perspective, if you've got lots of employees that can't comply with the policies that you've put in place that's going to cause you issues with recruitment, with retention, so being able to justify why you need those policies is, in my mind, quite a sensible step. “
Joe Glavina: “This is a case of indirect associative discrimination, and the law is subtle and it’s difficult. How are managers meant to understand what to do?”
Anne Sammon: “I think, first of all, it's really important to recognise that proportionality is really tricky. You know, at law school I spent lots of seminars sat talking about the concept and it's one that doesn't immediately kind of click with a lot of people and so I think, first of all, there needs to be that kind of knowledge within your management team of what is it that we're talking about when we're looking at proportionality and what is it that we're trying to get to? Essentially, the test from an employment tribunal perspective when we're looking at these kinds of discrimination cases is, have we looked at whether there's an alternative way of getting to the same place without applying this particular policy and one in which the employee isn't so disadvantaged? So it is that kind of quite difficult balancing exercise and I think often to expect a manager who doesn't really work in this area to get their heads around that is quite difficult. I think they need to understand that there is that requirement for us to show that we've been proportionate but I think quite often it's for the HR teams to challenge the manager and say, we'll have you thought about this as an alternative? What about this? How can we change this to make it work better for everybody?”
Joe Glavina: “Of course, following Brexit, it’s open to the Court of Appeal or Supreme Court to depart from the Chez ruling if the issue comes before them. Is that a reason to take a ‘wait and see’ approach to extending policies?”
Anne Sammon: “So I suppose there are two things. There’s the Brexit angle, but there's also the fact that this is only an employment tribunal decision, it isn't binding, it isn't authoritative. So, you could take the approach of well let's just leave things where we are. On the other hand, because this is all about objective justification and a lot of the justifications that you might have will apply to any indirect discrimination claim, it's quite sensible to have look at your policies and see whether they are working for everybody. How many people raise issues about them? Are there common themes with those issues? Does that mean that actually now might be the right time to revisit them, particularly as we are talking a lot about the new way of working, tomorrow's world of work, and the kind of hybrid model and how that works best for people. There's a real focus at the moment around things like ESG and, therefore, I think taking a more proactive approach, rather than the wait and see, has some real business benefits.”
That case is called Follows v Nationwide Building Society and is a decision of the London Central Employment Tribunal. If you would like to read it for yourself, you can – we’ve put a link to the judgment in the transcript of this programme.
- Link to ET judgement: Follows v Nationwide Building Society