An employer can be found to indirectly discriminate against an employee if the employer requires full time or additional hours to be worked in the office, and do not consider other suitable flexible working options, including working partly from home.

In a case which now dates back more than 10 years, an employee who was a single parent to a two year old son was employed as a payroll clerk. Her hours of work were 16 hours per week, as she could only arrange childcare for these 16 hours. After she had been employed for about 5 months the employer decided it wanted the employee to increase her duties and for a further 2 month period the employer worked an average of 16 hours a week overtime, most of which was carried out from home with the employer’s agreement. She worked from her bedroom that had been converted into an office with a desk, a fax machine and her home PC. The door was locked when not in use and the PC was password protected. She used email and floppy disk to transfer information between work and home.

After about 2 months of working overtime, the employer informed the employee without explanation that they wanted her to work full time in the office giving her about three months’ notice of this. The employee explained that she was unable to do this because of lack of child care and suggested her existing role was either job shared or she took on the additional hours but worked partly from home. The employer said they could not accommodate this and the employee resigned.

In this case, the employer argued that their refusal to agree to the employee’s request to work flexibly meant that they could justify their position. Their reasons included:

  • the cost implications would be enormous since new equipment and software licences would be required totalling approximately £12,000;
  • there were major health and safety considerations necessitating risk assessments;
  • they would have to comply with the Data Protection Act in ensuring any data held by the employee was secure;
  • the employee would have her child at home and the two year old’s needs were such that they might make her vulnerable to errors through lack of concentration;
  • they would have little control over her when she was working from home.

The Tribunal rejected all of the employer’s arguments. This is a warning to employers not to try to exaggerate issues when seeking to justify a requirement.

As a matter of fact, the Tribunal found that the additional costs would be minimal, that the employer had not taken any steps to investigate health and safety implications, that there was no real issue under the DPA, and that the assumption that the employee would be distracted by her childcare responsibilities was based on wholly outdated stereotypical attitudes. The concern of lack of control when the employee was working from home was misplaced and the Tribunal accepted the findings of research study produced in evidence that home workers were in general more productive than office based workers.

The Tribunal concluded that weighing these matters against a discriminatory effect against the employee, the requirements (PCP’s) (Provision Criteria or Practices) were not justified and that the employer had indirectly discriminated against the employee.

This case took place when the statutory disciplinary and dismissal procedures were in force and there was a 40% uplift for failing to deal with the employee’s grievance. The total amount awarded to the payroll clerk was just short of £30,000. In general, we find that Tribunals are sympathetic to genuine concerns, but raising concerns that have no merit will only backfire on the employer when these issues come to be examined and are found to have no foundation.

We do however wonder how many members of the Tribunal panel in this case have ever sat down and tried to concentrate on work whilst looking after a lively two year old toddler!

Many employers pay in excess of the National Minimum Wage of £3.30 for apprentices under 19 or in the first year of the apprenticeship. But if they pay the basic amount only it is important they ensure that their apprentices are truly apprentices, and not working under a contract of service.