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Is hybrid working opening businesses up to discrimination claims?

21 Oct 2021 By Caitlin Powell

People Management asks experts about the potential risks of implementing hybrid working arrangements, and what organisations can do to mitigate them

Since the pandemic normalised remote and flexible working, there have rightly been growing concerns over the implications of denying flexible working requests. The benefits for many of hybrid working are clear – better work-life balance and less commuting for the employee, and potentially higher rates of engagement and retention for businesses.

But hybrid arrangements – where either individual employees work in the office part of the time and remotely the rest of the time, or where teams made up of both office and remote workers – are not always the best-of-both solutions people want them to be. And as more employers explore their potential use, there is growing concerns that if not managed properly hybrid models could lead to discrimination claims.

Half (57 per cent) of hybrid workers are concerned that they could face discrimination because of their working arrangements, a poll last week revealed. This included 46 per cent who were worried that working remotely could impact their career development and progression, and 54 per cent concerned they would miss out on learning from peers and seniors while working from home.

People Management spoke to experts about what risks companies may face when employing a hybrid working arrangement, and what they can do to better support employees. 

Potential discrimination claims

“There is a danger that employees with certain protected characteristics choose to work from home and become under-represented in the workplace,” warns Alan Lewis, partner at Constantine Law, who suggests that more female staff, disabled employees or older employees may find it better to work from home.

In order to avoid this, he says, employers should make sure that decision making and processes around access to opportunities for training, development and promotion, are adjusted to not leave out hybrid workers.

Some groups of workers also have specific challenges that employers need to address if they are to make hybrid working a success. A poll of 1,000 UK workers by the Work Foundation and the Chartered Management Institute (CMI) found those with caring responsibilities found it harder to connect with colleagues who work remotely, compared to those without caring responsibilities (63 per cent and 55 per cent respectively).

The same poll, which surveyed a similar number of managers, found 20 per cent identified that remote working created an increased risk for women in terms of missing out on workplace opportunities and regressing towards more traditional role patterns.

While many groups, not least parents and those with caring responsibilities, have been calling for better flexible working for decades, Andrew Bazeley, policy and insight manager at the Fawcett Society, says that flexible working needed to be “truly embedded into organisational culture” if everyone is to benefit.

“Every job must be advertised with the flexible options that can work. This will transform workplace culture and will support parents, carers and everyone in the workplace who needs or values flexibility,” he said.

Lewis also cautions employers about the risk of claims linked to associative disability discrimination, which could arise in the event that an employer attempts to change the working arrangement of a hybrid worker who has responsibilities to care for disabled relatives, for example by bringing employees into the office on a full-time or mostly full-time basis.

“While the employee themselves is not disabled within the meaning of the Equality Act 2010, if the individual they care for is, this leads to the associative issue,” Lewis explains, advising that employers consider making reasonable adjustments for these employees.

Missing out on learning and development

“Although managers have in many cases had to develop new skills over the last year managing remote workforces... hybrid working brings with it a set of new and unique challenges,” says Kirstie Donnelly, CEO of City & Guilds Group.

If hybrid workers miss out on learning and development, “businesses must adapt to providing both face-to-face and remote training opportunities and ensure that a high quality of training is maintained in both formats,” she adds.

“It is important for businesses to offer a variety of training opportunities to harness employees with the skills they’ll need for both environments, for now and in the future,” says Donnelly.

No sense of belonging

Isabel Collins, founder of Belonging Space, warns that hybrid working “has already created new rifts of exclusion, a whole new playground of ‘in’ and ‘out’ groups.”

Missing out on casual contact, informal exchanges or spontaneously bumping into people is an issue for colleagues not in the office, she explains, leading to “reduced camaraderie, innovation and trust, even in well-bonded teams”.

To address this, managers need to reinforce that colleagues are not just accountable for their work, but for understanding the impact of their work on colleagues, customers, and partners. “Nobody should be thinking of their tasks in isolation,” she says.

Staff should also be encouraged to voice appreciation of the work their colleagues have done. “Look at the camera on Zoom to say thanks, drop a quick message, or a handwritten note,” Collins suggests, adding that informal coffees on video calls and regular online cross-discipline get-togethers can all build camaraderie.

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