The Covid pandemic has left an indelible mark on the world of work; with flexible, hybrid working becoming the norm in many industries. However, five years on, many employers are asking staff to return to working in the office – if not full time, then at least more often. For example, companies such as Amazon, Asos and Boots have recently asked staff to return to the office full time, while companies such as Barclays, Asda and Sports Direct have asked staff to increase the number of days they work in the office. Some employers are going a step further, and linking pay levels and bonuses to office attendance.
These approaches are, perhaps unsurprisingly, being met with resistance. Having enjoyed the autonomy and flexibility of hybrid working for the past five years, staff are reluctant to give it up. Some rely on such flexibility to allow them to juggle work and family lives, caring responsibilities and/or health issues. Most value it highly, sometimes even more so than increased pay. This likely explains the significant increase in formal flexible working requests that many employers are seeing, as staff seek to formalise and therefore preserve their more flexible working arrangements.
The recent Employment Tribunal case of Gill v BDW Trading Ltd (2300933/22) serves as a cautionary tale about the legal risks employers face when removing existing flexible working privileges. In that case, an employer’s decision to remove flexible working arrangements on short notice, from a female employee with childcare responsibilities, amounted to indirect sex discrimination; and the employer was ordered to pay compensation.
We take a closer look at the case below, and explore the key lessons for employers.
What Happened in the Gill v BDW Trading Case?
Ms Gill was an architect, working for construction company BDW Trading Ltd, from around May 2021. She was contracted to work 5 days a week in the office, from 9am to 5:30pm, but, as a result of the Covid pandemic she worked from home for the majority of the time (though did attend site visits when needed). In addition, in light of the fact that she had a young school-age child, she often worked her hours flexibly, to enable school pick-up and drop off.
In around July 2021, Ms Gill and her partner separated. This meant not only that Ms Gill had sole caring responsibility for their child, but also that she no longer had access to a car and therefore faced a much longer and more difficult commute. Though BDW Trading had promised her use of a company car, due to pandemic related delays, this was not provided. Ms Gill continued to work flexibly, mostly from home.
Ms Gill’s line manager, Mr Power, said that he did not mind where the work was being done from, as long as it was being done; and allowed her to work flexibly to accommodate her childcare responsibilities – she could do school pick-up and drop off if she made back the hours, which she did.
Mr Power arranged weekly meetings to discuss workload and go through tasks; to keep track of Ms Gill’s workload. He became concerned that Ms Gill was not delivering enough in relation to a specific project. In early October 2021, Ms Gill told Mr Power that she “had issues at home” and was “really struggling with things at the moment”. In response, he said that the work had to be done “no excuses”. Shortly thereafter, Ms Gill was diagnosed with anxiety, stress and low mood by her GP, though she continued to work.
On Thursday 21 October 2021, Mr Power told Ms Gill that, because of concerns about her performance, she would have to come into the office 5 days a week (two days in the office, three days on site), from 9am to 5:30pm, with effect from Monday 25 October. He was aware that Ms Gill would not be able to comply with this request due to her childcare responsibilities. On Friday 22 October 2021, Ms Gill was signed off work sick. She was paid sick pay, at a lower rate to her normal salary.
In around December 2021 Ms Gill lodged a grievance about the changes to her flexible working arrangements, which she claimed were discriminatory. The grievance was not upheld, and this was communicated to her in around February 2022. She chose not to appeal the outcome, but resigned from her role on 23 March 2022, stating “I now feel my continued employment, following dismissal of my grievance, is completely untenable”. Ms Gill’s employment subsequently ended on 22 June 2022, and she began a new role elsewhere shortly thereafter.
Ms Gill brought a claim for indirect sex discrimination against BDW Trading in the Employment Tribunal.
The Employment Tribunal Found that the Removal of Flexible Working Arrangements at Short Notice was Indirectly Discriminatory on Grounds of Sex
The Tribunal upheld Ms Gill’s claim. It found that the requirement, on short notice, to work from the office five days a week, between the hours of 9am and 5:30pm, was indirectly discriminatory on grounds of sex, and was not objectively justifiable.
That is to say, the requirement:
- was a provision, criterion or practice which had been applied by BDW Trading,
- applied to both the men and women in its workforce,
- put women (who are more likely to have childcare responsibilities, and are therefore less likely to be able to accommodate an inflexible 9am to 5:30pm work day in the office five days a week) at a particular disadvantage compared to men (who are less likely to have childcare responsibilities, and are therefore more likely to be able to accommodate such working arrangements),
- put Ms Gill at that disadvantage, and
- was not objectively justifiable as being a proportionate means of achieving a legitimate aim.
On the issue of disadvantage; the Tribunal commented that women, because of the fact that they were more likely to have childcare responsibilities, were less likely to be able to accommodate certain working patterns than men, and in particular would be less likely to be able to comply with the requirement to work 5 days from the office with inflexible working hours. Ms Gill had been placed at a disadvantage on this basis.
On the issue of objective justification; the Tribunal commented that BDW Trading had imposed the requirement despite knowing that Ms Gill would not be able to comply with it. This had been done in the wider context of home and hybrid working, for roles like Ms Gill’s, having become standard practice in the wake of the Covid pandemic. In this context, a sudden move to enforce a requirement to work from the office 5 days a week, with inflexible working hours, was discriminatory. There had been no consideration of any other option, nor had there been any consideration of Ms Gill’s issues with childcare, at all. The proper and efficient functioning of BDW Trading’s workforce to the performance standard required (which was the legitimate aim on which it had sought to rely in order to justify its actions) could have been achieved in a less discriminatory way (i.e., its actions were not proportionate). Had Mr Power, with the assistance of HR, had a conversation with Ms Gill about what was and was not possible in respect of childcare; and with that in mind, given her reasonable notice to enable her to put childcare in place; then the legitimate aim could still have been achieved, but in a less discriminatory (more proportionate) way.
Ms Gill was awarded loss of earnings for the period during which she had been receiving a lower rate of sick pay and had not been well enough to work (amounting to over £7,100). She was also awarded over £6,200 for injury to feelings. The Tribunal explained that compensation was awarded at this level in light of a number of factors, including that Ms Gill’s pre-existing depression, anxiety and sleep issues had been exacerbated for a short period, of around 4 months; and the fact that there was a buoyant job market, and Ms Gill had found alternative employment which started almost immediately after her role with BDW Trading came to an end, so had sustained limited losses. It is worth noting that compensation awarded in similar cases in the past has been much higher, including one recent instance where compensation for refusal of a flexible working request amounted to almost £200,000; so the level of compensation awarded in this case should not be taken as an indication of the level which may be awarded in future cases relating to flexible working.
Key Lessons for Employers
Each case will, of course, depend on its own individual circumstances. However, we set out below key principles to bear in mind.
- “Informal” flexible working arrangements can become contractual, through custom and practice, even if not recognised in the contract of employment. It can be common for contracts to stipulate that employees will work from the office full time, within specific hours, when in practice they work flexibly / remotely. However, it is important to bear in mind that such arrangements can nonetheless become contractual through custom and practice, and that any attempt to vary them could amount to a variation of terms and conditions of employment.
- Contractual flexible working arrangements should not be changed unilaterally by an employer on short notice. There should ordinarily be a period of consultation with the employee, during which agreement is sought to any changes, before they are implemented. The exact process to be followed will depend on what the contractual arrangements are, whether the organisation has an applicable policy in place, and what the express provisions for variation are. However, some form of consultation will usually be a minimum requirement.
- Pushing changes through via dismissal and re-engagement should only ever be a last resort, and must be carried out in accordance with the new Statutory Code of Practice on Dismissal and Re-engagement. Failure to comply with the Code can result in an uplift in any subsequent award made by an Employment Tribunal (e.g. for unfair dismissal), by up to 25%. Where 20 or more dismissals are being made in a 90-day period, the statutory collective consultation obligations will also apply, and any failure to comply with these can result in a protective award of up to 90 days’ pay per affected employee (though this will be doubling under the Employment Rights Bill) . There are also potential reputational damage considerations to bear in mind. The government is proposing to make further reforms in this area under the Employment Rights Bill in the future, so watch this space.
- Revoking flexible working arrangements can be indirectly discriminatory. In the Gill case, the revocation of flexible working arrangements was indirectly discriminatory on grounds of sex (in light of Ms Gill’s childcare responsibilities), and the employer failed to objectively justify its actions as a proportionate means of achieving a legitimate aim (particularly because they revoked flexible working on short notice and with no consideration of the broader circumstances). The same principles could apply where an employee has a disability, and requires flexible working arrangements because of this.
- Where flexible working arrangements need to be changed, objective justification will be key. That means the employer will need to show that, in changing flexible working arrangements, (a) they have a legitimate aim they are seeking to meet (for example, workforce efficiency / business need), (b) the action they are taking is a proportionate means of achieving that aim (i.e. the least discriminatory option possible). In Gill the Tribunal commented that the employer’s legitimate aim (of the proper and efficient functioning of its workforce to the performance standard required) could have been achieved by a less discriminatory means; for example, by having a conversation with Ms Gill about what was and was not possible in respect of childcare. Proportionality is often the key to getting this right – i.e., trying to strike a balance between the legitimate needs of the business and the needs of the employer. Often, in practical terms, this equates to arriving at a mid-way point or compromise.
- There could be non-legal risks too. For example, there could be knock-on consequences for the organisation’s reputation, ability to recruit, staff morale and motivation, productivity and staff retention. Which is why it is all the more important to ensure that an appropriate, fair, process is followed before any changes are made.
If your organisation needs further advice on any of the issues outlined in this article, please get in touch and our team of experienced Employment Lawyers would be happy to help.
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The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.