The Risk of Gender or Disability Discrimination When Employees Return to the Workplace

All businesses across the UK can now open as normal, employers have been given the green light to encourage staff to return to their place of work. However, with many employees working from home for over a year, it may be challenging for some to return. Certain groups of employees, such as parents or those with a disability, may find it even harder to transition back to in-person work. It is important that an employer is attentive to each employees’ challenges to prevent the possibility of a claim for discrimination.

Employees With Children Requiring Care

It can be argued that family dynamics have been fundamentally changed. Since the pandemic occurred it has shown us a new way of undertaking working in the home environment alongside caring for children. It has given greater flexibility in when the hours of work are undertaken around the needs of the family. However, it remains that women are primarily responsible for childcare and is thus more likely for women to wish to work from home, work flexibly, or reduce their hours if they cannot find appropriate childcare arrangements for the children.

A policy for all staff to return to work may proportionally disadvantage women as they may be less able to return to their pre-pandemic working patterns. In a worst-case scenario, where an employer is inflexible and refuses to engage in more flexible working this could leave the employer open to a sex discrimination claim at the Employment Tribunal. It is vital for employers to maintain an open dialogue with female employees to devise an inclusive return to work policy. If an employer is determined to insist on a return to work as previously imposed, they must ensure that they give staff sufficient notice to allow parents to find suitable arrangements for childcare if possible.

Employees With Disabilities

Although many people have now received the Covid-19 vaccination, the risk of infection is still present. Those with long term health conditions such as immunodeficiency, learning disabilities or those who live with someone who is more likely to get infections, may be particularly worried about sharing workspaces again.

An employee is disabled under the Equality Act 2010 if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. Someone with an impairment who falls within the definition of the act is protected under the Equality Act, employers need to be aware of the possible claims of disability discrimination, including failure to make reasonable adjustments. The adjustments will vary depending on the needs of the employee and it is important to maintain an open dialogue with employees to identify reasonable adjustments to aid their return to work. This may include continuing to work remotely.

Note should be taken of the potential for an employee to claim associative discrimination. This protects employees who have a family member or close friend with a disability who suffers a detriment because of their connection to a person with a disability. For example, an employee may be hesitant to work from their place of work if their partner has an immunodeficiency.

Under the law, a disability is a physical or mental impairment that has a ‘substantial and long-term’ negative effect on a person’s ability to do normal day-to-day activities. ‘Long term’ means the impairment has lasted or will last for at least 12 months. Consideration must be given as to whether people suffering from long COVID would come within the remit of being disabled. Long COVID is where a person has long term post viral symptoms of covid-19 which continue to cause them ill health in a variety of ways which includes fatigue, shortness of breath, chest pain, palpitations, problems with memory and concentration, depression, anxiety, and insomnia. It is yet to be recognised as a disability. The TUC has published an in-depth report in workers experiences of long COVID-19 during the pandemic, The TUC has called for it to be recognised as a disability and for Covid-19 to be classified as an occupational disease, to give workers access to legal protections and compensation. The government have resisted the pressure being put on it for the time being, so it is important to keep an eye on any developments.

You may wish to consider new working arrangements such as working remotely full time or hybrid-working. Which will require a review of your contractual arrangements with staff including ensuring that a risk assessment on the home is carried out and that suitable insurances are in place to permit the home work with suitable ergonomic furniture to facilitate the home working.


As we settle into remote working becoming more commonplace, it is important to consider the future for employees who do not attend the workplace as often as others.

Employees may feel at a disadvantage if they do not attend work as often and do not get to enjoy learning from, collaborating, and interacting with colleagues in person.

It is, once again, important to ensure there is an open dialogue with all employees about their wellbeing in the workplace. In addition, individual risk assessments may need to be undertaken to ensure wellbeing and to ensure the home working environment is fit for purpose. It’s vital to ensure there are measures in place to promote remote and hybrid worker’s inclusion, from social interactions to career opportunities.

Should you decided to continue with home working we can review your staff policies, procedures, and contractual documents to assist you with the transition to make this a permanent part of your employee’s contract.

If you would like to discuss any points in this article further or are looking for independent advice either as an employer looking to bring staff back to the working environment or as an employee thinking about remote working, please contact Spire Solicitors LLP People Services team on 01603 677077 or contact us by email on