With working from home no longer a legal requirement, employers have been investing time and thought in planning how their workplaces will operate. Many employers are implementing hybrid working arrangements, with staff allowed to work from home at least some of the time, to preserve some of the advantages of homeworking highlighted by the pandemic. A recent sex discrimination case illustrates how careful employers need to be when planning this. While 'flexibility for all' has become the mantra, employers still need to bear in mind that women still carry out more childcare than men. There is therefore a risk of indirect sex discrimination claims arising from requirements as to working hours.
The case concerned an NHS employee who had been granted flexible working some years previously. Her employer wanted to change her working hours so that she would be required to work some weekend days. She was adamant she could not do so because of her childcare responsibilities. Her employment was ultimately terminated as a result. Although her claim for sex discrimination was dismissed by the Employment Tribunal, the Employment Appeal Tribunal held that the Tribunal should have approached the case on the basis that women shoulder most of the burden of childcare and so are less likely to be able to work certain hours. The case will now need to be reconsidered by a fresh Tribunal.
The key lesson for employers here is not to forget basic common sense. Although childcare may be more evenly split between the sexes than 30 years ago, women are more likely to be the primary caregivers for children (particularly younger children), and in many cases the pandemic has exacerbated that. Many hybrid working policies state that some flexibility is required on the employee's part - and that is fair and appropriate. However, any requirement to vary agreed working times and locations (particularly at short notice) is likely to have more of an impact on female staff caring for children, which means that an indirect sex discrimination is a real risk. Of course, that's not the end of the story; if the policy is a proportionate way of achieving a legitimate business aim, the employer will be able to defend the claim. But aside from whether the policy is legally defensible, there's a wider question of whether it will have a negative effect on diversity and inclusion. Employers will need to show flexibility on an individual level, on the basis of individual employees' circumstances, to fully reap the benefits of hybrid working.
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