Can home working lead to discrimination?

Whether you’re for or against home working, the practice continues to be an option for many employees.

In those circumstances, the issue of discrimination against home workers arises, particularly as acts of discrimination can be more difficult to identify in a home working situation.

To help you spot discrimination when you are working from home, we set out your key rights as an employee and the legal responsibilities of your employer, with examples of how you could be discriminated against when you’re home working.

See also our guides on discrimination at work, flexible working and remote working for a wider view.

What is a home worker?

If you are a home worker, you carry out your duties at home, rather than in your employers’ offices or other premises.

This can be done on a full-time basis, or as a ‘hybrid’ arrangement that typically allows you to spend part of your working week working from home and the rest of the time working at premises provided by your employer.

 

Do I have a legal right to work from home?

You have a legal right to work from home if your home is specified as your place of work in your employment contract.

However, if it’s not specified in your contract, you don’t have an automatic right to home working of any kind.

What you do have, however, is a right to ask your employer to consider it.

Flexible working requests

As from 1st April 2024, you have a statutory right from the first day of your employment to make a flexible working request. Prior to April 2024, you had to have been employed for at least 26 weeks.

Should your employer refuse your request, they must consult with you about any refusal and provide a reasonable explanation as to why it isn’t possible.  They can’t simply refuse a flexible working request because they don’t like the idea.

Any refusal must be based on a business-related decision, such as concerns about work performance and quality, additional costs it may incur, effects on meeting customer demand or planned structural changes to the business.

Your employer must be able to demonstrate that flexible working – including your working from home – will have a negative impact on business performance.

How can home workers be discriminated against?

Discrimination against home workers, or against people who want to work from home, can occur without you necessarily being aware that it’s happening.

Direct discrimination

Direct discrimination is usually easier to identify than other forms of discrimination, as it is typically more overt and directed towards a specific characteristic of an individual.

However, an employer is not allowed to implement a policy that disproportionately affects people with what’s known as a ‘protected’ characteristic, where characteristics such as race, sex, disability etc. are given legal protection in the workplace under the Equality Act 2010.

Put simply: discriminatory reasons cannot be used to refuse a flexible working request.

For example, your employer may already allow a female colleague with children to work from home. If they rejected a request for home working from a male employee with children, it could be viewed as direct sex discrimination.

See our guides on Discrimination and Sex discrimination for more.

Indirect discrimination

Indirect discrimination can occur when a particular policy or rule is applied to everyone in the same way but has a negative effect on some individuals or groups more than others.

An example would be if you worked for an organisation that had a blanket policy not to agree to any requests for working at home.

In such a case, if you were female and could prove that the policy had a greater effect on you than on your male colleagues, you might be able to claim indirect sex discrimination.

Vulnerability to discrimination of home workers

As a home worker, you could be more vulnerable to discrimination because certain aspects of your private life can be accidentality revealed through video calls.

For example, your employer or a colleague may spot a poster supporting LGBTQ+ rights, or religious items in the background, when you’re on a call with them.

If they don’t share the same beliefs as those communicated by the items they see in your home, they may begin to view you differently and with less respect. This in turn could escalate into discrimination or other forms of mistreatment such as harassment and bullying.

How can home workers identify discrimination?

Identifying discrimination when you are working from home can be difficult, simply because direct interaction with your employer is significantly reduced.

However, many of the negative issues that can impact employees in the workplace can also affect you as a home worker, even if those issues present themselves in different ways.

Example of discrimination against home workers

For example, while bullying and harassment in the workplace are generally easier to identify, they can be more difficult to spot in a remote environment.

In an office environment, bullying can be verbal or even physical. If it’s directed towards a home worker it can involve video calls that – unless they are recorded with participants’ consent – tend to take place in a more private environment.

Cyberbullying and harassment are commonplace on social media platforms. Similar patterns of behaviour can occur between your employer or colleagues and you when you’re working from home, including anything from bullying to sexual harassment.

 

Responsibilities of employers for home workers

Whether you work at home or at your employer’s premises, your employer’s legal responsibilities for you as an employee remain the same.

If they allow you to work from home, that means they will sometimes have to take additional steps. For example, where health and safety issues are concerned.

They must also ensure that your other work-related needs are attended to in the same way as they would be if you were working on their premises.

This includes you being:

• Invited to attend key meetings either remotely or in-person
• Offered reasonable support to accommodate any disability
• Appraised to the same standards as workplace employees
• Provided with adequate health and safety risk assessments

Home workers also have the same entitlements to sick pay as workplace employees, although the way you report it may be different. Moreover, there should not be any expectation on you to ‘work while sick’ just because you usually work from home.

 

Next steps

If you are a home worker and think you have been unfairly treated or discriminated against by your employer, you may be considering taking matters further.

Monaco Solicitors can help you assess whether your employers’ actions amount to unfair treatment or discrimination.

Our lawyers all specialise in employment law. We can review your options with you and offer expert advice on what to do next.

If we can help you, we always aim to resolve your issue promptly and to your best advantage.

To find out more about our no-obligation consultation and range of other services, contact us:

• Via this link
• Phone: 020 7717 5259
• Email: communications@monacosolicitors.co.uk