Returning to work – a requirement to work full time from the office may be discriminatory against those with caring responsibilities

In the case of Fallows v Nationwide, an employee who was a senior manager had the primary caring responsibilities for her disabled mother.  As a result of her caring responsibilities, she had previously attended the office only two or three days per week. 

The employer introduced a new working-based policy which required all managers to attend the office five days’ a week.  The company’s aim in introducing this was that it would provide on-site supervision.  However, despite applying the policy across the management population, Ms Fallows could not comply with this request because of her caring responsibilities and was dismissed.

Indirect Associative Discrimination?

The concept of associative discrimination is well established in direct discrimination cases.  However, what about in indirect discrimination? Following the European Court of Justice decision in Chez Rapredelenie Bulgaria, the Tribunal held that the Equality Act 2010 must be read to extend the concept of associative discrimination to indirect discrimination.  This meant that the employee was protected from indirect discrimination on the grounds of her mother’s disability, even though the employee herself was not disabled.  

The Tribunal accepted as a general principle that those with caring responsibilities are less likely than those without caring responsibilities to be able to comply with a requirement to be office based.  With indirect discrimination, employers are able to try and justify a requirement on the grounds that it has a legitimate and objective reason.  However, in this case, the tribunal did not accept that the employer’s aim of providing on-site supervision was legitimate, as the aim itself was discriminatory.  However, even if it had been a legitimate aim, the employee’s dismissal was not a proportionate means of achieving that aim, given that a hybrid working arrangement had previously operated successfully on the facts.  

This decision is not binding on other tribunals and, as a result of Brexit, it is open to the higher courts to depart from the principle established in the Chez case on appeal.  However, it is a salient reminder to employers of the difficulties they might face when dealing with flexible working requests and resistance to returning to the office after over 18 months of working from home during the pandemic.  It is also notable that this is the first time the concept of associative discrimination has been held to apply to indirect discrimination in the UK. 

Managing Flexible Working Requests - Learning Points

When considering a return to the office, employers should review their policies on home working and flexible working, and carefully consider the business aims they are seeking to achieve and whether these can be objectively justified.  Does a requirement negatively impact one group of employees more than another? Can the policy be objectively justified? Can the aims of the policy be achieved in a less discriminatory way?

Employers should be mindful of the impact changing working requirements might have not just on those with protected characteristics, but also those with caring responsibilities, and consider whether there are any other, less discriminatory ways of achieving the same business aims.  It is about balancing the needs of the business against the impact on the individual. 

While not impossible, justifying full time office work may become more difficult and careful thought must be given to the reasons being relied upon, and their impact on particular groups of employees.  A poorly thought out or blanket policy is likely to result in successful discrimination and/or unfair dismissal claims. As always, take advice.

For help and support with your return to work policies or flexible working requests the contact [email protected]