Tughans LLP on employment law and difficult workplace scenarios.

For July 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims for discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“We have recently carried out a recruitment process for an internal vacancy. We received a complaint from an employee who works remotely. The employee feels they were not looked upon as favourably during the process as other employees who work in the office. How do I handle it?”   

Internal recruitment processes can carry many benefits, such as avoiding lengthy and costly external recruitment processes, especially in today’s challenging employment market. They allow employers to retain existing talent and avoid the need to onboard and train new employees.

While there is no “set process” on how employers must recruit, internal applicants are entitled to be treated reasonably in line with the implied duty of trust and confidence and to a fair and non-discriminatory recruitment process.

Unlike external applicants, an internal applicant with over one year’s continuous employment could bring an unfair dismissal claim arising from perceived unfairness during an internal recruitment process, adding to the usual risk of discrimination-based claims.

This means that internal recruitment processes should be conducted with the same level of fairness and due process that you would apply to external processes. With fully remote applicants, you will need to consider additional factors, such as; whether managers have sufficient information and visibility to assess their suitability for the role, and if they can fully and fairly participate in the application process itself, in the same way as other employees. The process should comply with the standards set by your policies on recruitment, equal opportunities and/or equity, diversity and inclusion.

You should consider whether the employee’s complaint is sufficiently serious that it should be treated as a grievance. This will depend on the specifics of the complaint; it may be the case that the issues they have raised are relatively minor and can be dealt with informally.

If the employee raises issues which could be discriminatory, they will almost certainly need to be dealt with formally. If you are unsure, the best approach is to ask the employee whether they want the complaint to be dealt with as a grievance. Formal grievances should be investigated in line with your grievance procedure in the normal way.

Employees are protected under discrimination law from less favourable treatment on the grounds of a protected characteristic such as their age, sex or disability. They are not protected from less favourable treatment solely on the grounds that they work remotely, compared to hybrid or office-based employees. It is conceivable that a manager could, for example, promote team members who attend the office more than others, on the basis that they value office attendance. This is not unlawful discrimination in itself because the alleged less favourable treatment must relate to a protected characteristic.

However, this does not mean that there is no risk of unlawful discrimination. You should consider the basis for this employee’s home working arrangement and whether it is linked to a protected characteristic. The most relevant protected characteristics are likely to be disability, sex, pregnancy or maternity.

Giving preference to applicants who are not remote workers is a “provision, criterion or practice” which could place employees at a substantial disadvantage due to their protected characteristic and therefore constitute indirect discrimination.

For example, if the employee’s remote working arrangement has been provided due to a disability, including as a reasonable adjustment, they could argue that they have been placed at a substantial disadvantage by the preference for applicants who are not remote workers, and that this was indirectly discriminatory on the grounds of their disability. When assessing this risk, you should consider whether the employee has disclosed a health condition which is confirmed as a “disability” or which could be a disability, even without the formal diagnosis.

Similarly, the employee may work remotely to facilitate childcare responsibilities. In previous cases, the tribunals have accepted that these responsibilities are predominantly borne by women and can form the basis of an indirect sex discrimination claim.

It is also possible that the employee may have an issue with the recruitment process itself. For example, they might allege that there were elements of the process which they could not fully participate in remotely, but which influenced the decision-making process. You should consider their experience compared to other employees through the various stages of the recruitment process, and especially how they were scored at interview stage compared to “in person” attendees. It may be the case that their interviewers scored “in person” applicants higher for certain criteria or did not allow for any technical issues faced by the remote applicant.

Overall, you may conclude that the application process was conducted fairly and that the employee was not disadvantaged by being fully remote. There may be legitimate and non-discriminatory reasons for the eventual decision and these should be confirmed in the grievance outcome.

If you find that interviewers made negative assumptions about the employee based on their remote working, for example, doubting their work ethic or teamworking, you may need to provide further training and guidance to managers and update your internal recruitment policies.

Of course, the role itself may genuinely require the successful applicant to work in the office. If so, remote applicants should be asked if they are willing to change their working arrangements. If not, you could consider rejecting their application on the basis that they cannot fulfil the requirements for the new role. You should consider whether this requirement is indeed necessary and the scope for reasonable adjustments for disabled applicants.

This is a developing area and you should note the recent English Tribunal case of Wilson v Financial Conduct Authority in 2023, in which the Tribunal found that a senior manager’s flexible working request was validly refused on the basis that some level of in-office attendance was necessary for their role, including for leadership and management purposes.