For me, overlooking those who work remotely isn't *discriminatory* in and of itself, in the sense of the EQ2010 act. (It is unwise and probably disengaging a useful workforce, but not discriminatory in a legal sense.) But it has a high risk of being so when you consider the reasons that some people wish to WFH - e.g. it can often be a reasonable adjustment for a disability, it can support with parental or other caring needs. So I'd be really carefully examining why part of the workforce are WFH and others aren't, to check there isn't a common factor related to a protected characteristic.

I'd also probe why organisations should be "focusing on upskilling managers to handle remote teams and providing the necessary tools for remote work". If things work well for an organisation when their workforce is not remote, it's not an automatic that they need to facilitate remote working - it depends on where this is in priorities, but it isn't a right. Upskilling managers and tools for remote working will always come at a cost, minor or major depends on the finances of the organisation and the starting point. For some organisations, they may need to consider whether they spend on this upskilling and updating of tools or whether they spend on employee benefits such as wellbeing initiatives, or their whole budget may be eaten up by mandatory training that is legally required or on the significant minimum wage increases that have been seen in the past two years or on awarding living cost support/bonuses. For some workforces, they may prefer to have had bigger pay awards in recent years rather than had their business spend on enabling a fully remote operation. Other workforces may be willing to sacrifice some of the pay award in order for kitting out a remote workforce to be facilitated.

If an organisation knows their staff wish to work remotely, and they know staff can do this effectively with the right tools, and they either have issues with engagement, staff turnover, accommodating reasonable adjustments etc., then yes, they should be pushing this up the priority level. But just because we can WFH doesn't mean businesses should focus on facilitating it. That's an individual decision for each business depending on the factors at play for them.

If employees can excel working from home and can also excel working from the office, why should working from home be seen as a significant advantage for the organisation? You may cite savings on overheads such as office space, utilities etc. But we must remember that sometimes businesses are tied into these costs for a number of years, and increased WFH brings other costs such as facilitating DSE set up from home, adjusted IT security, more portable tech and the upskilling of managers.

There's somewhere to be found here between "if it isn't broken, don't fix it" and continued advancement/servicing to ensure it doesn't get broken!

In reply to Sophie:

Hi Sophie,

Thank you for sharing your perspective. It's really interesting to hear different viewpoints on this issue.

I agree with your comment: "But it has a high risk of being so when you consider the reasons that some people wish to WFH - e.g. it can often be a reasonable adjustment for a disability, it can support with parental or other caring needs."

I believe that overlooking employees simply because they work remotely can potentially be considered a form of discrimination, especially if these employees are meeting or exceeding their goals and performance metrics. The UK Equality Act 2010 protects employees from unfair treatment based on protected characteristics such as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Discrimination can occur in various forms, including direct discrimination, indirect discrimination, and discrimination arising from disability.

While remote working itself is not a protected characteristic under the Equality Act, if overlooking remote workers disproportionately affects employees who share a protected characteristic, it could be deemed indirect discrimination. For instance, if a policy or practice disadvantages a particular group (e.g., women who may be more likely to request remote working due to caregiving responsibilities), it could be considered discriminatory unless it can be objectively justified as a proportionate means of achieving a legitimate aim.

This is why statements like:

- "A recent Dell memo said, making it clear that if staff want to stay working on a remote basis, then they can expect their progression to stall."

could potentially be deemed indirect discrimination?

Employees should be assessed based on their performance and contribution, not their physical location. Could overlooking remote workers despite their satisfactory performance lead to claims of unfair treatment and be actionable under employment law?

Regarding your other comment, "If employees can excel working from home and can also excel working from the office, why should working from home be seen as a significant advantage for the organisation?" – that's not what I am really getting at. Employers may want employees in the office to fill the buildings, but my question is whether it's right to overlook and not progress employees simply because they work remotely. Employers should ensure that all employees, regardless of their working location, have equal access to opportunities, training, promotions, and rewards.

Chris

In reply to Chris:

Thanks for posting this, Chris.

I'll flag this to colleagues next week and see what they say re validating these claims...

In reply to Steve Bridger:

Hi Steve

Thank you for taking the time to bring this up with your colleagues. Please keep me posted on any feedback or updates you receive.

Chris

I think arguing if this is or isn't potentially indirect discrimination is a bit of a red herring (I agree it may be btw). As relying on the law in these circumstances to effect change is both slow and arguably ineffective (how long have we had equal pay legislation for example, or sex discrimination etc)

The key for me is the failure of organisations and HR in particular to really address what it wants from its colleagues and how to adapt to working post pandemic. As we are largely still operating with the same processes, outlooks and cultures from before the pandemic "just on teams", then its hardly surprising that people in the office will be promoted more as they are seen more, have more side line discussions and are generally more in peoples minds.

Until we address the fundamental question of how we measure work, what we want from colleagues and how or indeed "if" we want to adapt to real hybrid working (rather than just this somewhat plastic transfer of office modes to hybrid locations) things are unlikely to change much if at all.

In reply to Chris:

You ask "could overlooking remote workers despite their satisfactory performance lead to claims of unfair treatment and be actionable under employment law?" - yes - this is a no-brainer. It's a very broad question with very limited context. It's the same as asking "could overlooking non-drivers despite their satisfactory performance lead to claims of unfair treatment..." - yes, absolutely. Unless there is an objective justification for doing so.

There is an important distinction here between correlation and causation. Quite possibly there is a correlation between working remotely and stalling progression; that correlation does not mean employees are being assessed on their physical location rather than performance and contribution. It could be for various reasons. It *could* be deliberate bias, it *could* be unconscious bias, it *could* be proximity bias.

It could be that remote workers don't have the same appetite for advancement (possibly due to point in their career or their own ambitions or personal circumstances/priorities). It could be that remote workers don't gain experience at the same rate as they "stay in their lane" more often rather than organically expanding experience. It could be that the professional development of remote workers suffers because of isolation, regardless of how much good management goes in. For example, beginning work in a call centre - if you are in one room, for some people that's overwhelming and impedes their learning and ability to perform, while for others they learn fast by hearing how those around them deal with influencing customers.

I'm not aware of any studies as yet that have empirically looked at the reasons for this, though there is lots of anecdotal evidence supporting both bias and other reasons.

If employers are actively saying "we will not look at you for promotion if you work remotely" and do not give an objective justification why, *and* they have employees who work remotely for reasons that are protected under EQ2010, this could cause discrimination cases. However if employers are saying "where you work remotely through choice, we have seen that this correlates with slower career advancement", then they are providing information that will help individuals to make informed choices about their working style. It's important those employers look at why this happens and try to address it if required. For me, that's similar to saying "if you stay working for the same employer for 10 years, you are less likely to see the same salary advancement as someone who works for 2-4 employers in those 10 years".

"Employers should ensure that all employees, regardless of their working location, have equal access to opportunities, training, promotions, and rewards." - I disagree with this for the reasons I've previously laid out. If an employer is failing in their duty to make reasonable adjustments, then yes they need to meet their legal requirements. But if they have valid reasons for requiring in-office working from the vast majority of staff, it is up to staff to decide if they want to work for that employer or not. Just as if an employer has valid reasons for remote working, some people will choose not to work for them because they don't want to work from home. For me, it is perfectly acceptable for an employer to say "you have equal opportunities for training and promotion, this is how you access them". If an individual simply cannot due to a protected characteristic, the employer needs to level the playing field. But levelling the playing field does not equal allowing all employees to always work from wherever they want to.

In reply to Keith:

Very succinctly put Keith, the last paragraph is essentially what I'm trying to say. We can't start from a default viewpoint that remote working *or* office working is better for business or better for employees. We need to address it for each business and each individual and adjust appropriately.

The reasons why someone is working remotely in the first place are important, particularly if this arrangement is part of some considered reasonable adjustments, for example.

It must also surely depend upon the type of work too. For example, some work lends itself more to remote working, while other roles may require some phyical interface either with colleagues or customers. Nevertheless, there must be many remote roles in which the job can be done well and in theory at least, career advancement should not be a problem.

It would be interesting to break the headline figures down to see whether there is any correlation between the types of roles or industries cited and opportunities for promotion. It would not surprise me if there was some direct or indirect discrimination at play here, because some employers may well be applying old world bias without thinking things through, much to the detriment of individuals who are perfectly capable of advancing their careers through working remotely.

In reply to Sophie:

Hi Sophie,

Thank you for your detailed response. You raise several important points that I appreciate.

I agree that my question about overlooking remote workers and its potential to lead to claims of unfair treatment is broad. However, the principle remains that performance and contribution should be the primary metrics for career progression, not physical location, unless there's an objective justification for this.

I understand the distinction between correlation and causation you highlighted. It's true that remote work might correlate with slower progression for various reasons, including potential biases (deliberate or unconscious), differences in career aspirations, and the nature of professional development in different work environments. This complexity underlines the need for employers to ensure their assessment criteria and processes are transparent and based on objective performance metrics.

While I see the merit in your argument that remote workers might not advance as quickly due to different career ambitions or isolation from learning opportunities, this underscores the importance of robust support systems for remote employees. Employers should strive to mitigate these challenges through deliberate management practices that foster inclusive development opportunities.

Regarding your disagreement on ensuring equal access to opportunities, I completely disagree here. I believe the essence of equality is not necessarily treating everyone the same, but ensuring everyone has equitable access to resources and opportunities. If remote work inherently creates barriers, then employers should identify and address these barriers rather than defaulting to office-based work as the norm. This could involve creating tailored development programs or ensuring remote workers have equal networking opportunities. I don't think i could ever accept that employees should not have have equal access to opportunities, training, promotions, and rewards solely based on their working location.

Lastly, I agree that if there are valid, job-specific reasons for requiring in-office work, it is reasonable for employers to expect employees to comply. However, these reasons should be clearly communicated and objectively justified to avoid perceptions of unfair treatment.

Thank you for your insights.

Chris

In reply to Keith:

Hi Keith,

I appreciate your perspective on this . I agree that focusing solely on whether this constitutes indirect discrimination might detract from the broader issues at hand.

The slow and ineffective nature of relying on legal frameworks to drive change, highlights the need for a more proactive approach from organisations. The real challenge lies in rethinking what we want from our colleagues and how we measure work in a post-pandemic environment.

The persistence of pre-pandemic processes, outlooks, and cultures, simply adapted to virtual platforms like Teams, indeed contributes to the visibility and promotion bias towards in-office employees. Being physically present often translates to more organic interactions and visibility, which can unfairly advantage those in the office.

Organisations need to develop new metrics for assessing performance that are equitable for both remote and in-office workers. This could include redefining success criteria, ensuring remote employees have equal access to mentorship and networking opportunities, and fostering an inclusive culture that values contributions regardless of physical presence.

Until these issues are addressed, the disparity in career progression between remote and in-office workers is likely to persist. It's about creating a balanced environment where all employees have equal opportunities to succeed, whether they work remotely or on-site.

Chris

In reply to Chris:

hello chris ,,

From my point of view, I believe that all wrong policies in the workplace, such as “poor promotion opportunities for remote workers”, are due to faulty processes on the part of employers or CEOs and their non-numbers-based preferences, as well as poor education on the part of human capital management personnel. It is the responsibility of the HR employee to raise awareness of the company and the surrounding community through available means.

In reply to Chris:

Chris

What others have said are much the same  views as mine.  

However:- "However, the principle remains that performance and contribution should be the primary metrics for career progression, not physical location, unless there's an objective justification for this".

But isn't one  of the issues in promoting someone - and I'm making the assumption that this will be into some kind of supervisory/manager role, that of how can you judge someone's ability to do this if they spend most of their time working from home?  I  think it is well accepted that  your performance in one job doesn't necessarily mean you have an adequate ability to manage others and often people get promoted beyond their ability..  I think it is also well known that one of the motivating/hygiene factors in employment is the relationship with your  manager.   Isn't this another hurdle for the company to resolve - if they can?