As coronavirus restrictions begin to ease, employees are gradually starting to return to the workplace. However, a number of employees continue to remain reluctant to do so for a variety of reasons, not least because they have enjoyed the flexibility which working from home affords.
Over the next few years, it is predicted that a wave of discrimination claims will be brought by employees who have been overlooked for promotion due to working from home and/or who have minimized their interactions with the workplace.
What Are the Risks to Employers?
There are several valid reasons why employees may like to remain working from home, even when it is deemed safe to return to the workplace. The flexibility which homeworking offers has benefited a number of employees, especially older employees, those who are pregnant, have childcare responsibilities and/or have a disability.
In UK law, indirect discrimination occurs when a provision, criterion or practice (PCP), which applies to all staff, puts a group of people who share a protected characteristic (such as age, sex, disability, etc.) at a particular disadvantage when compared to others who are not part of that group—and puts a particular concerned individual at that disadvantage.
Therefore, if employers promote or provide more opportunities for office-based employees to progress, there is a risk of indirect discrimination claims caused by the resulting unfavorable treatment of home-based staff on the grounds of sex, disability or age. To avoid liability for claims, employers will have to show that their practices can be objectively justified, if a discrimination claim is brought.
How to Avoid Potential Discrimination Claims
In order to avoid, or militate against, potential claims, employers should think carefully about the following points:
- Employers should not have a blanket policy which denies or hinders career progression to employees working from home. It is important to ensure that office-based and home workers receive the same opportunities when managers distribute tasks, assignments and projects.
- Employers are encouraged to advertise opportunities for promotion openly within the organization. A clear set of objective selection criteria should be used for promotion opportunities so that employees and managers can measure their experience and skills against these criteria.
- Managers should apply the selection criteria fairly. It is important to use objective documentation, such as appraisals and performance scores, to avoid subjective interpretations being made. People who work from home and apply for promotions should not be marked down because of this.
- Ensure that any training is carried out online and not in the office, so that home-based workers are able to participate and are not placed at a disadvantage by not being physically present.
- Do not neglect women on maternity leave. They should be informed about promotion opportunities while on maternity leave and given the opportunity to apply for any promotion that they would have been told about if they had been at work. This has always been the case and is not just because of the pandemic.
- Avoid making assumptions about women with children—for example, that they will be unreliable, inflexible or not interested in a demanding role and therefore unsuitable. Based on UK law at least, this would certainly amount to unlawful direct discrimination because of sex.
- Consider how you describe the role you are promoting and the person you are looking for to ensure that you are not excluding disabled people from promotion opportunities. Consider whether reasonable adjustments are required to enable a disabled employee to carry out the role without disadvantage. Further, employers should not make any assumptions about a disabled employee’s abilities or willingness to take on a new role.
- Employers should be aware not to inadvertently operate an “out of sight, out of mind” approach to promotions and opportunities. As more and more staff return to the office and are on the front lines, so to speak, there is a risk that those who don’t return, may get left out.
In summary, to avoid unlawfully discriminating against employees, employers will need to be mindful about managing a disparate workforce, with some employees based in the office and others at home. Care will need to be taken to support all employees to ensure that office-based workers are not given preferential treatment. Employers will need to ensure that homeworkers are not overlooked for promotional prospects merely due to their method or location of work.
Catherine Hawkes is an associate at Royds Withy King with a focus on UK employment law. Please contact [email protected] for more information.
