Employment Law Coffee Break | EAT highlights continuing relevance of the childcare disparity in discrimination claims, an extension to Covid-19 adjusted right to work checks and our June pensions spotlight

EAT decision stresses continued relevance of the childcare disparity

Despite the many potential benefits hybrid working can bring to an organisation, concerns have been raised that it risks exacerbating existing inequalities, particularly around gender and disability in the workplace, where women with childcare responsibilities, or those with a disability, may benefit from spending more time at home. Issues which may arise include pay increases, promotions, work opportunities and responsibilities being awarded based on time spent in the office rather than individual performance.

With businesses building their hybrid working policies considering factors such as meeting client demands and the need for team collaboration, care must also be taken to ensure that the requirements of the policy itself are not inadvertently discriminatory; for example, requiring regular attendance at a team collaboration day on a day which may not currently be an employee's normal working day. This not only raises practical issues for an employee who needs to put childcare arrangements in place or attend medical appointments, it may potentially be indirectly discriminatory. In a recent decision, the Employment Appeal Tribunal (EAT) has highlighted the continued relevance of a judicial notice (which enables a fact to be established without specific evidence) that women bear a greater burden of childcare than men, and that this can limit their ability to accommodate flexible working patterns, such as working certain hours (for example, nights) or changeable hours where the changes are dictated by the employer. This was termed by the EAT as the childcare disparity.

In this case, the employer sought to require employees to work more flexibly, including at weekends. This requirement was a provision, criterion or practice (PCP) for the purposes of the claimant's indirect sex discrimination claim. The EAT identified the correct pool for determining if there was group disadvantage as all those to whom the PCP applied. Further, while there was "no evidence at all" put before the tribunal to support any group disadvantage, it was appropriate here to take judicial notice of the childcare disparity given the PCP in question. The EAT considered that the “relationship between the childcare disparity and the PCP in question is likely to result in group disadvantage being made out"; indeed, "the PCP was one that was inherently more likely to produce a detrimental effect, which disproportionately affected women".

The EAT decision does stress though that taking into account the judicial notice of the childcare disparity does not necessarily mean group disadvantage is made out when considering any form of flexible working; it will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question. So, if a PCP "requires working any period of 8 hours within a fixed window or involves some other arrangement that might not necessarily be more difficult for those with childcare responsibilities", it would be open to a tribunal to conclude that group disadvantage is not made out.

Although Covid-19 has disrupted the division of childcare responsibilities within many families, perhaps leading to longer term change, this case is a useful reminder that care must still be taken in introducing arrangements where there is a particular PCP that could potentially have an indirectly discriminatory impact and which cannot be objectively justified. The EAT noted that while "many societal norms and expectations change over time" and "things might have progressed somewhat in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal". With more men looking to achieve flexibility or caring for their children as a single parent, employers should also be aware of the heightened risk of direct sex discrimination claims where their request is not considered equally with that of a female colleague.

Immigration: extension to adjusted right to work check and updated guidance

The government has confirmed that the ability to carry out "adjusted" right to work checks in light of the Covid-19 pandemic is extended again to 31 August 2021; after that date, employers will need to ensure that an individual attends the place of work so that their original documents can be checked, unless the individual permits the employer to check their right to work using the government's online service (see our earlier Insight).

The Home Office has also updated its guidance to reflect changes to the way EEA citizens taking up employment will prove their right to work in the UK from 1 July 2021. It remains the case that employers are not obliged to carry out retrospective right to work checks on EEA nationals who were employed on or before 30 June 2021; for those employers who are considering further checks, it is important that these are carried out in a non-discriminatory manner and while employers may wish to invite/encourage employees to use the government's new online checking service, an employee cannot be forced to do so.

Our immigration team will be happy to advise you on the latest position and how this impacts your practices.

Pensions spotlight for June – are you ready to talk about 'value for members'?

Regulatory focus on "value for members" of a pension scheme is increasing, but value for members is not just about charges. In our spotlight we look at what it is, why employers might want to discuss it with pension scheme trustees and how we can help if you have concerns about your trustee-managed defined contribution (DC) scheme.