Home working – beware of the discrimination trap
In a recent case, a female employee who worked partly from home to help with her childcare arrangements won a case of sex discrimination when her employer revoked this arrangement and offered her flexible hours as an alternative.
The employee concerned had worked one day a week at home since the birth of her first child. A male colleague had similar arrangements to help him with his childcare commitments in relation to his disabled son. Their employer then decided that, after ten years of this arrangement, the female employee no longer needed to work from home one day a week as her children were at school. She was offered flexible start and finish times to fit in with the school run. No explanation was offered for this review of her working arrangements.
The employee raised a grievance which was dismissed. She then brought a sex discrimination claim on the basis that she was treated less favourably than her male colleague. She won both at the Employment Tribunal and the Employment Appeal Tribunal (EAT).
The Tribunal found that the managers in this case failed to properly explain their reason for the treatment of the employee and concluded that the reasons that they gave were false. The EAT held that the unfavourable treatment, the difference in gender of the employees and the false explanations given for the treatment amounted to discrimination based on sex.
This case highlights the need for employers to act with caution when considering or reviewing flexible working arrangements. It is important to give a plausible explanation for any decisions and to ensure that it is in no way related to one of the protected characteristics (sex, race, disability etc.). It is also crucially important to document the reasons for any decisions relating to flexible working.
The rules on flexible working are due to change in the summer. We will provide full commentary in our next Employment News.