Flexible working - employers should take care

Employers and employees have faced unprecedented pressures in the last 12 months not least reacting to the need to work from home almost overnight. Many organisations have continued to keep their employees working from home and are suggesting that a full-time return to the office is a thing of the past. Requests for flexible working will increase and employers must be careful not to fall into any traps.

The Legal Ombudsman for England and Wales is appointed by the Office for Legal Complaints to run an independent scheme that resolves complaints about lawyers in a fair and effective way, with the aim of driving improvement to legal services. The Legal Ombudsman works with the Ministry of Justice. It is therefore interesting to note that the Legal Ombudsman has recently fallen foul of employment legislation.

The Employment Tribunal upheld a claim of indirect sex discrimination against the Legal Ombudsman. The matter related to flexible working arrangements which led to a dispute the result of which was a failure to take full account of the implications of flexible working for a member of staff.

The Citizens Advice website describes indirect discrimination rather neatly:

'Sometimes discrimination can be easy to spot - for example, if a hotel turns you away because you're gay. This is called direct discrimination. This is when you're treated differently simply because of who you are.

But there are other times when you may be treated in the same way as everybody else, but it has a different and worse effect on you because of who you are. This is also discrimination. The Equality Act 2010 calls this indirect discrimination.'

The facts leading to the difficulties faced by the Legal Ombudsman arose during 2019, that is, before the pandemic. However, it is fair to say that employers are likely to face increasing requests for flexible working in the coming months and years and they must ensure that they do not full foul of the equality legislation in considering such requests.

The Citizens Advice website sums up indirect discrimination as arising:

  • when there is a policy, practice or rule which applies to everyone in the same way
  • it places people who share a protected characteristic at a disadvantage
  • it places an individual personally at a disadvantage, and
  • the person applying the policy, practice or rule cannot show that there is a good enough reason for it

To discuss this or any other employment related matter, contact us.

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