Mandatory office working and the risk of discrimination

We’re currently in a state of flux regarding working practices – jobs that were traditionally office-based for five days a week have been carried out at home for much of the last two years. Employers are faced with a decision as to whether this home working should continue, whether a full office return is required, or whether a hybrid solution can be implemented.

There are, as ever, nuances and specific situations that need to be taken into account. Although based on facts before the Covid-19 pandemic, the recent case of Follows v Nationwide Building Society is an interesting consideration of inflexible working provisions and their impact on an individual with caring responsibilities.

Mrs Follows had worked as a Senior Lending Manager (SLM) on a homeworker contract. This was to allow her to provide care to her disabled mother. The employer went through a redundancy process where four SLMs were made redundant, and remaining SLMs were all required to be office-based. As Mrs Follows did not wish to become office-based, she was ultimately made redundant.

Thereafter, Mrs Follows raised a number of claims, including unfair dismissal and both direct and indirect discrimination. This discrimination claim was an associative one, based on her mother’s disability.

Discrimination element

Whilst the unfair dismissal claim succeeded for a variety of reasons, it is the discrimination element of the claim that is more interesting. The Employment Tribunal (ET) concluded that it had jurisdiction to hear the indirect associative discrimination, following a case in the European Court of Justice.

It then considered that the requirement that SLMs could no longer work from home on a full time basis put the claimant at a substantial disadvantage because of her association with her mother’s disability as her principal carer. It held that the employer did not take reasonable steps to avoid this disadvantage as there was no evidence on which the decision was based or reasons given as to why home working for the role could not continue.

Of note was that the ET found that the employer’s argument that “A need to provide effective on-site and managerial supervision and support to more junior staff following a reduction in SLM headcount and the change in the nature of the respondent’s CRE lending business” was not a legitimate aim and included a discriminatory element.

The ET further held that this also amounted to indirect sex discrimination as it is evident from statistical evidence that more women than men are primary care givers at home for relatives.

Comment

Although this is only a first instance decision which does not bind other ETs, it is notable for being the first time a claimant has successfully argued indirect discrimination by association. A key takeaway point for employers is that they will have to be careful about requiring employees to return to mandatory office based working. It will also be important to understand the reasons an employee may request flexible working, a consultation of which has begun to review whether this should be a right from day one of employment (see our HM Insight here for more information).