Indirect discrimination: How mandated office returns could discriminate against working mothers

The start of 2025 has seen a flood of conversation about large companies enforcing a full time return to the office, marking a decided turn away from the trend towards hybrid and fully remote working.

These changes have been met with a mix of challenges and support from across the workplace, and for many people, the impact of these decisions is very personal. The modern workplace is a diverse make up of people with different responsibilities, from different locations, and with differing economic resources. These aspects can all impact how an employee reacts to a Return to Office policy, and it is clear that a one-size-fits-all approach is a difficult and potentially risky move for a company to take.

There are a number of potential legal pitfalls with this approach, and for a full summary of these please see our article “Is this the end of working from home?”.

In this article though, we will focus on one of the biggest potential hurdles, and the one that is garnering the most media attention and the most criticism. Is a return to work policy discriminatory on grounds of sex?

Understanding Indirect Sex Discrimination

One of the risks that employers face when implementing mandated return-to-office (RTO) policy, is one of claims for indirect sex discrimination, particularly against women with childcare responsibilities.

Under the Equality Act 2010, indirect discrimination occurs when a policy or procedure which applies to everyone, in practice disproportionately disadvantages a particular protected group. In this case, it is alleged that RTO policies place women at a disadvantage as compared to their male colleagues.

The reason for this is enshrined in case law on indirect discrimination, which is clear that women are more likely to have childcare responsibilities, and therefore any policies that impact a person’s ability to carry out childcare responsibilities is likely to be indirectly discriminatory towards women.

Mandated RTO policies that apply flatly to all employees, may cause logistical challenges to employees who have to manage school runs, childcare drop-offs and other caregiving duties. Because of this, those with childcare responsibilities may find it more challenging to comply with strict office attendance requirements.

If attendance is linked to performance or used as a metric when considering promotion or bonuses, this may have a directly detrimental and financial impact on those with childcare responsibilities.

Legal Implications for Employers

Employers considering a mandated full return to the office must therefore consider the risks and take steps to ensure that their RTO policies do not indirectly discriminate against those with protected characteristics, including women. Failure to properly consider this point and take steps to protect their employees may expose the employer to litigation in the Employment Tribunal which can result in potential reputational and financial damage.

An employer can have a lawful defence to claims for Indirect Discrimination if they can objectively justify the policy by demonstrating that it was a proportionate means of achieving a legitimate aim. In practice, this will mean showing that the policy relates to a real business need, that the measures taken were reasonably necessary and that there are no less discriminatory alternatives available which would have achieved the same objective.

Practical Steps to Mitigate Risks

Employers who are considering implementing a RTO should consider taking the following steps to avoid indirect sex discrimination claims, or to mitigate the risks of such claims by showing a legitimate aim:

1. Conduct Equality Impact Assessments: We recommend that employers assess how return to office policies might affect different groups of employees, and take into consideration people with protected characteristics. Claims for indirect sex discrimination are just one of the potential risks here, and this exercise may help to highlight other vulnerabilities.
2. Offer Flexible Working Arrangements: Employers should carefully consider whether a full return to the office is necessary for their objective, and where possible consider providing options such as hybrid working models, flexible hours, or part-time work. This can help accommodate the needs of employees with childcare responsibilities.
3. Prepare for Flexible Working Applications: Even if employers do not take the above step, it is crucial to remember that all employees have a day one right to make an application for flexible working, regardless of whether they have a protected characteristic. There are limited grounds for refusing such a request, and a strict procedure that must be followed, so employers must be ready to respond to these requests and consider them on an individual case-by-case basis.
4. Engage in Consultation: Even if the changes proposed are not contractual, we recommend that employers involve employees in the discussion, either through an employee forum, feedback questionnaire, or trade unions. Speaking opening to employees and responding to their concerns will help with creating an atmosphere of trust which may limit potential future claims.
5. Provide Support for Childcare: Consider offering support for childcare, such as on-site childcare facilities or subsidies for childcare costs. This can help alleviate the burden on employees with caregiving responsibilities and promote a more inclusive workplace.
6. Regularly Review Policies: Continuously monitor and review RTO policies to ensure they remain fair and inclusive. Be open to making adjustments based on employee feedback and changing circumstances.

Employers who are considering making this change should be alive to the risks, and our team are well placed to advice on process and risk management.