Foster: Case law will be needed
Employment tribunals may in future need to recognise that homeworking has become an established ‘reasonable adjustment’ to working practices for disabled people, including lawyers, a webinar heard last week.
The Law Society and academics also argued that the pandemic had shown that successful legal businesses could be run from home.
A recent survey showed that the suspension of office working under lockdown has helped improve the mental and physical health of disabled lawyers, and in a Law Society webinar Professor Debbie Foster of Cardiff University Business School noted that homeworking was the most common reasonable adjustment requested of employers by disabled lawyers and the most frequently refused.
That was a finding of the Legally Disabled? report she and researcher Dr Natasha Hirst published in January on the experience of disabled lawyers, which was supplemented by the survey to see how they had been affected during Covid.
Professor Foster said lockdown had created a situation which, although it occurred “in a very specific historical context”, could not have been a better experiment for social scientist.
Homeworking had always been seen as either a second-class option or something that only certain grades of employee – normally the more senior – could do but was nevertheless vital for many disabled people.
Disabled people who had to travel in to work every day at law firms often found the journey exhausting and a major hindrance in their careers, the research had found.
While the legal profession had been “really quite antagonistic to home working”, the academic said she hoped firms would now embrace it as the “new normal”, thus creating a much more inclusive work environment for disabled people.
She added that organisations should accept that homeworking had become an “established reasonable adjustment” under the Equality Act 2010.
“It will need case law to establish it but I think it would be very difficult now to wind the clock back and say that home working is not a reasonable adjustment.”
Speaking to Legal Futures, Professor Foster elaborated: “Although I would never pre-judge what conclusion an employment tribunal would make, and it would always depend on [the facts], I would think it fair to say that if someone has successfully and productively worked from home during Covid-19… there is no reasonable reason why this should not continue [and that] taking away this facility if requested by a disabled person might be viewed as unreasonable.”
She acknowledged that a firm might be able to argue the contrary in specific circumstances, such as that it would mean maintaining costly systems of communication.
In his introduction to the webinar, Law Society president David Greene said: “Lockdown has shown incontrovertibly that the majority of organisations can adjust rules to accommodate homeworking and I firmly agree that this is something disabled employees should be able to count on not just now but into the future as well.”
Professor Foster advised law firms to plan around the assumption that “a lot of people will still want to home work post-Covid” and that they should move away from seeing it as a “crisis management” measure but instead see there were advantages.
For instance, she said, when recruiting firms could include homeworking as part of the job description. This could attract “more talented disabled people” to apply. Firms should also think about incorporating homeworking into careers structures and progression schemes.
She asked: “Can you now provide more online mentoring? Are there opportunities for networking online? Or shadowing online – so that people can come along and gain experience through virtual events?”
Among other recommendations, the report suggested creating “safe spaces” for staff to disclose their disabilities. The academic said firms should investigate which measures would best assist disabled people, such as by carrying out surveys of employees.
They may find , for example, that the use of technology helped some people but was a problem for others. “One size does not fit all,” she observed.
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