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Law firms have cautioned employers thinking of cutting pay for remote workers to think carefully about potential discrimination claims if they do.
Leading lawyers have warned employers not to make hasty decisions to cut remote workers pay after a cabinet minister told the Daily Mail that civil servants who don’t go back to the office should have their pay docked because they are not paying commuting costs.
Several law firms have cautioned that employers may face lawsuits if they try to implement pay cuts and will need to tread carefully.
Joanne Frew, UK head of employment law at DWF, said: “With many businesses struggling it is unsurprising that they will be looking for ways to cut costs. However, implementing sweeping pay cuts for homeworkers is not without serious risk. The starting point is the employment contract. If employers wish to implement pay cuts for homeworkers this would constitute a change to terms and conditions, one employees are unlikely to agree to. Employers would need to go through a process to change terms and conditions and could expect to face serious challenges. Coupled with this, employees would argue that the fact they work from home reduces overheads and if productivity has not diminished a pay cut would seem arbitrary. Employers may also face discrimination claims where homework is a necessity during the pandemic due to childcare or a disability. However, there may be situations where the job role has changed, parts of the role cannot be carried out away from the office, or the employee has opted to work from home. In those situations, reduced pay may be appropriate.”
Frew added that the debate about changes to workers’ pay comes amid other areas of potential legal risk for employers, for instance, over vaccination passports which, she said, may create a two-tier workforce and be discriminatory if an employee’s vaccination status is linked to a protected characteristics – for example, age, pregnancy or because of a disability. She stated: “It is important for employers to tread carefully when implementing any vaccination policy to reduce the risk of discrimination.”
Another potential discriminatory area is promotion with some Government ministers attempting to get people back to the office by saying their promotion prospects will be affected. Lawyers say staff could bring discrimination claims against employers if they find their career being held back because they are working remotely if they are more likely to be working from home because of their age, gender or if they have a disability.
Meanwhile, CIPD chief executive Peter Cheese has added his voice to those accusing the Government of sending out mixed messages over working from home.
*More on the discussion about pay and remote working can be found here.