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Hybrid Working and the Risk of Discrimination

The world of work has changed and while hybrid working has become a mainstay for many businesses, the embrace of more flexibility may, perhaps ironically, leave employers open to an increased risk of discrimination claims.

2 minute read

Published 25 October 2022

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Key information

Hybrid working could give rise to a “proximity bias”; the idea being that those who tend to come into the workplace are treated more favourably than those who typically work from home.

The Legal Background

The risk of indirect discrimination arises when an employer applies a provision, criterion or practice (PCP) that puts an employee with a protected characteristic at a particular disadvantage compared to others and the employer is unable to justify that PCP.

For a hybrid working policy to give rise to discrimination, home working would need to create a disadvantage compared with office-based working. This disadvantage must then detrimentally affect those with a particular protected characteristic under the Equality Act 2010.

People with certain protected characteristics have been found more likely to want to work from home. Female workers, for example, typically bear most of the responsibility for childcare and disabled people may wish to work from home to avoid travel. Employees who care for disabled relatives may also be more likely to work from home and could be at risk of indirect associative discrimination.

Difficulties and Pitfalls

Employers should be wary of an “out of sight, out of mind” approach to performance reviews, work allocation and promotions.

There is a danger that presence in the office will come to serve as an indicator of career commitment, reinforcing a stigma toward flexible workers that persists even in the post-pandemic workplace.

It is important to ensure that the career progression of those who work on a hybrid basis does not suffer due to, for example, reduced personal contact with managers or fewer opportunities for training.

Policies and practices that limit hybrid working may also amount to unlawful indirect discrimination unless they reflect a legitimate business reason and are proportionate. When considering a flexible working request, employers would be well advised to have a robust and transparent policy in place and ensure that any decisions can be justified.

Recommendations

Hybrid working has been described as a further dimension of employers’ diversity and inclusion efforts. Care should therefore be taken when designing a hybrid model that works for both employers and their staff.

  • Employees should be given equal access to managers and regular feedback, whether they tend to work at home or in the office.
  • Training events should be recorded and shared to ensure that remote employees do not miss out on opportunities for career progression.
  • Employers should be proactive in ensuring that all employees are visible, no matter their working pattern. This can involve training managers on how to manage from afar, including delegating work to home workers, keeping them updated with company developments, and ensuring remote workers feel valued within the organisation.

A carefully considered hybrid working policy can also ensure that the time employees do spend in the office is effectively used.

Some businesses are drawing a clear line in the sand and insisting that time in the office should be used for collaboration, building relationships and other pursuits that are perhaps less easily achieved at home.

Rather than using office time for video calls, it may be beneficial to encourage staff to use this time in a way that fosters connectivity and face-to-face interaction.

Establishing core days where teams are required to work in the office guarantees a minimum level of in-person contact and can help to ensure that hybrid workers are fully involved in important meetings.

Conclusion

Hybrid working can offer a number of benefits, including employee satisfaction and greater flexibility. Despite this, hybrid working also has the potential to create an unequal playing field and employers should think carefully about how best to tap into these benefits while avoiding a discriminatory impact.

For more information, please visit our hybrid working knowledge hub.

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Longer Reads

Hybrid Working and the Risk of Discrimination

The world of work has changed and while hybrid working has become a mainstay for many businesses, the embrace of more flexibility may, perhaps ironically, leave employers open to an increased risk of discrimination claims.

Published 25 October 2022

Associated sectors / services

  • Employment law for employers

Authors

Hybrid working could give rise to a “proximity bias”; the idea being that those who tend to come into the workplace are treated more favourably than those who typically work from home.

The Legal Background

The risk of indirect discrimination arises when an employer applies a provision, criterion or practice (PCP) that puts an employee with a protected characteristic at a particular disadvantage compared to others and the employer is unable to justify that PCP.

For a hybrid working policy to give rise to discrimination, home working would need to create a disadvantage compared with office-based working. This disadvantage must then detrimentally affect those with a particular protected characteristic under the Equality Act 2010.

People with certain protected characteristics have been found more likely to want to work from home. Female workers, for example, typically bear most of the responsibility for childcare and disabled people may wish to work from home to avoid travel. Employees who care for disabled relatives may also be more likely to work from home and could be at risk of indirect associative discrimination.

Difficulties and Pitfalls

Employers should be wary of an “out of sight, out of mind” approach to performance reviews, work allocation and promotions.

There is a danger that presence in the office will come to serve as an indicator of career commitment, reinforcing a stigma toward flexible workers that persists even in the post-pandemic workplace.

It is important to ensure that the career progression of those who work on a hybrid basis does not suffer due to, for example, reduced personal contact with managers or fewer opportunities for training.

Policies and practices that limit hybrid working may also amount to unlawful indirect discrimination unless they reflect a legitimate business reason and are proportionate. When considering a flexible working request, employers would be well advised to have a robust and transparent policy in place and ensure that any decisions can be justified.

Recommendations

Hybrid working has been described as a further dimension of employers’ diversity and inclusion efforts. Care should therefore be taken when designing a hybrid model that works for both employers and their staff.

  • Employees should be given equal access to managers and regular feedback, whether they tend to work at home or in the office.
  • Training events should be recorded and shared to ensure that remote employees do not miss out on opportunities for career progression.
  • Employers should be proactive in ensuring that all employees are visible, no matter their working pattern. This can involve training managers on how to manage from afar, including delegating work to home workers, keeping them updated with company developments, and ensuring remote workers feel valued within the organisation.

A carefully considered hybrid working policy can also ensure that the time employees do spend in the office is effectively used.

Some businesses are drawing a clear line in the sand and insisting that time in the office should be used for collaboration, building relationships and other pursuits that are perhaps less easily achieved at home.

Rather than using office time for video calls, it may be beneficial to encourage staff to use this time in a way that fosters connectivity and face-to-face interaction.

Establishing core days where teams are required to work in the office guarantees a minimum level of in-person contact and can help to ensure that hybrid workers are fully involved in important meetings.

Conclusion

Hybrid working can offer a number of benefits, including employee satisfaction and greater flexibility. Despite this, hybrid working also has the potential to create an unequal playing field and employers should think carefully about how best to tap into these benefits while avoiding a discriminatory impact.

For more information, please visit our hybrid working knowledge hub.

Associated sectors / services

  • Employment law for employers

Authors

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