When is on-site working discriminatory?

A recent case provides us with valuable insight into when working from home is more than a useful part of agile working. A female employee was a Senior Lending Manager (‘SLM’) for a national building society. She worked under a ‘home working contract’. In fact, she routinely spent 2 days each week at the office. She had worked successfully in this role for many years and her appraisals consistently recorded that she was able to line manage effectively whilst working remotely. The employee was also a carer for her disabled mother who had COPD.

The building society decided that it needed to reduce its SLM headcount and also to require those that remained to work at the office. This was driven by expressions of concern from junior members of staff about the need for increased levels of supervision. The company embarked on a redundancy exercise and the headcount was reduced to the target number. This employee survived this part of the redundancy process. However, her redundancy process continued. There was a prolonged discussion about the need for SLM’s to be exclusively office based. The employee was asked to submit what were entitled ‘counter proposals’. The employee advanced her argument that the system of working from home with regular office attendance had worked very well and could easily be preserved in the future and would allow to perform her caring duties. The building society dismissed this appeal on the basis that she was redundant.

Well, was she redundant? The reality was that the redundancy exercise had concluded well before she was dismissed for redundancy. The headcount had reduced. The process was over. The ‘redundancy’ process that continued for this employee was not related to redundancy at all. The process was entirely consumed with the employee’s desire to maintain the existing plan of working from home. Thus, the employee was unfairly dismissed.

And what else? These events were also acts of discrimination on the basis of associative indirect disability discrimination. The employee’s mother had a disability. Remember that the protected characteristic does not need to belong to the employee! The company had applied a provision, criterion, or practice (‘PCP’). The PCP was the requirement for all SLMs to be office based. This PCP was discriminatory because it put this employee at a substantial disadvantage when compared to others without caring obligations. So, could the company show that the PCP was a proportionate means of achieving a legitimate aim? The company said that the role had become more transactional, and process driven and that there was consequently a greater need for direct supervision of teams by SLMs, “it is much better when colleagues are sitting next to each other…informal day-to-day supervision was lacking”. This account did not amount to a clear business rationale and there was no analysis relied upon in support of the need for on-site working. The company was merely expressing the impressions of a few junior staff.

Please keep in mind that to justify a PCP which has discriminatory effect, you will need the clearest evidence of need and business efficacy.

And remember: a redundancy process is a redundancy process and a change to terms and conditions is an entirely different creature!

The statistics of care

The company in this example was also, by the same logic, found responsible of an act of indirect associative sex discrimination.

Did you know that a census from Carers UK in 2019 found that 58% of carers are female, women make up 72% of those people receiving Carer’s Allowance and 1 in 4 women aged 50 to 64 have caring responsibilities compared to 1 in 6 men. This makes associative discrimination on the grounds of disability and sex a very real proposition.

The information contained in the above article was correct at the time of publication. To ensure you are kept up to date with changes to employment law matters, click here to sign up to our dedicated employment database.

Learn more about Rebecca

All the articles above are written by our head of Employment Rebecca Denis. Rebecca’s professional background is unique in that she worked for more than 20 years as a barrister providing legal advice, drafting and advocacy for her clients and more recently provided specialist trouble-shooting services on employment law and employee relations at a leading international HR outsourcing company.

What Rebecca doesn’t know about Employment Law really isn’t worth knowing.

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