Worldwide: Proximity Bias Is Becoming A Critical Issue In Hybrid Workforces – What Do Businesses Need To Be Aware Of And How Can They Ensure They Are Not Discriminating Against Remote Employees?

Author(s): IR Global, Linda Wong, Lionel Paraire, Diana Neagu, Rebecca Torrey, Shilpen Savani, Gabriel Bleser, Gerd Müller-Volbehr, Mark D'Alelio

Linda Wong - CEO & Partner, Wong Fleming - US - New Jersey

A hybrid work from home and office culture has allowed businesses to expand their search to qualified employees around the country, rather than being confined to one labour pool in a local area. They can also establish to their clients that they have the bench strength to handle matters nationally, with employees who are in tune with the local requirements where their home offices are located. It has also promoted employee morale in providing greater work/life balance.

Lionel Paraire - Partner, Galion Société d'Avocats - France

Under French labour law, employers have a general safety obligation provided by law vis-à-vis their employees, requiring them to take necessary steps to ensure their workers' safety and to protect their physical and mental health. This is an enhanced duty of care, which means that employers can avoid liability if they can prove that they have taken all the preventive measures provided by the code. The sustainable installation of teleworking requires rethinking the organisation of work and the company's operating methods to optimise the benefits and limit the negative impacts of teleworking (loss of a collective bond, difficulty in sustaining business culture, capacity for permanent adaptation, etc.). Both employees and managers agree that the main prerequisites for a successful hybrid model are: network quality and IT security; a certain flexibility in the implementation of collective rules, and; evolution of managerial practices.

To be more efficient when they are on site, employees want to have an individual office or isolated spaces allowing them to concentrate or make phone calls, while also having communal spaces. They also want working methods to evolve towards a management more focused on trust, encouragement, taking initiatives, and the right to make mistakes. They also want more agility and flexibility in terms of time management.

Managers say they are ready to reorganise workspaces and to allow flexibility between on-site work and telework. Their priorities for successful work hybridisation lie in communicating with employees, measuring productivity, preventing occupational risks, and access to mobile digital tools.

Of course, HR must have a non-discriminatory approach to the different types of employees, based on objective and concrete elements, to establish a fair WFH policy: not all tasks and/or functions are 'teleworkable'.

Diana Neagu - Partner, Vernon | David - Romania

According to the provisions of Article 6 of Law 81/2018, remote employees should benefit from any and all rights provided by the law, the internal regulations of the employer, and the collective bargaining agreements applicable to on-location employees of the same employer. In addition to this specific anti-discrimination protection provided by the law, we believe it is important for employers to ensure that employees who work remotely are not isolated from their co-workers and that efforts are made to integrate them as much as possible.

As such, one of the most important elements that we believe Law 81/2018 provides for is an obligation for the employer to provide specific measures to ensure that remote employees are not isolated from other employees and have the possibility to regularly meet their colleagues.

During the pandemic, we took this to imply regular online meetings with either all the employees of the company, or at least regular departmental meetings if the number of employees is too large to allow for regular all-hands meetings. Outside the pandemic, most of our clients have preferred to conduct weekly online meetings and quarterly offline meetings, with at least one yearly all-hands meeting, or weekly offline meetings and at least one yearly all-hands meeting.

Rebecca Torrey - Partner, The Torrey Firm - US - California

There are at least two types of bias – unlawful bias based on legally protected classifications, and a broader bias against certain employees without implicating equal employment laws. In considering unlawful bias, employers must be alert to and test for adverse impact in employment practices along the lines of any protected classification: whether in hiring, promoting, terminating, equal pay or the conditions of employment in hybrid work. If a protected class of worker is experiencing proximity bias, that might amount to unlawful discrimination. An example along these lines during the pandemic could be a requirement that older or medically vulnerable employees work from home because of their health or advanced age, missing out on opportunities at work.

Looking more broadly at the issue of proximity bias, treating individuals differently as a result of where they perform services may cause dissatisfaction, internal complaints, declining productivity and morale, supervisory challenges and poor retention. A sense of unfair treatment can be a source of conflict among co-workers and lead to human resource issues. Not everyone succeeds in a remote situation requiring personal initiative and provided with less oversight. Performance shortcomings can be more difficult to diagnose and challenging to address appropriately. While many people view remote work as a privilege, others do not, especially if favouritism occurs for those working on-site.

Companies aware of these problems aim to address the sense of exclusion and isolation by implementing practices to enhance internal communication, loyalty, workplace culture and, ultimately, job satisfaction. That is not a simple process and requires innovation in teambuilding and communication to create the interactions and relationships that occur with regular interpersonal contact. There are no easy, off-the-shelf solutions. Digging into this challenge is an ongoing process as businesses adapt to hybrid work arrangements.

Shilpen Savani - Partner, gunnercooke llp – England

As great as hybrid working can be, working from home can sometimes have the unintended effect that employees suffer from being 'out of sight, out of mind'. This is especially likely if the senior management of a business is primarily office-based, while their workforce work partly, or wholly, from home. This can then lead to management placing greater focus on the employees they see in person on a day-to-day basis, to the detriment of those who have a lesser physical presence. If this feeds into management decisions, it can cause real injustices.

This type of skewed view of the workforce can mean that the wrong factors are used to decide promotion, restructuring or redundancy decisions. For example, an employee who works from home on a part-time basis because of childcare commitments might be valued less than a colleague who is office-based and a full-time employee. This can result in allegations of unfairness and less favourable treatment and, in extreme situations, trigger claims of unfair dismissal and/or breaches of the Equality Act 2010.

Employers must be alert to this danger and take steps to make sure that something intended to improve conditions for their workers doesn't end up with the opposite effect. This requires clear lines of communication with line managers, regular contact with all staff, and regular business-wide appraisals of the whole workforce.

Gabriel Bleser - Partner, Bonn Schmitt – Luxembourg

With hybrid culture, proximity bias has worsened, especially for younger workers who suffer from a fear of missing out and who are worried that working remotely will result in lost career advancement opportunities.

Sometimes, this can indeed be the case, without managers realising it. These situations can result in both direct and indirect discrimination, as well as other negative consequences on employees (burn-out, loss of motivation, desire to compensate and overdo, etc.). Proximity bias is a problem that Luxembourg companies need to be aware of and address.

In Luxembourg, any direct or indirect discrimination based on religion or belief, disability, age, sexual orientation, actual or assumed membership or non-membership of a nationality, race or ethnic group is prohibited under Article L.251-1 (1) of the Luxembourgish Labour Code.

Moreover, Article 6 of the Convention on the Legal Regime for Telework in Luxembourg (the Convention), dated 20 October 2020, has introduced a principle of equal treatment between teleworkers and regular workers, in particular concerning employment conditions, working hours, remuneration conditions, conditions of – and access to – promotion, collective and individual access to continuing professional training, respect for privacy and the processing of personal data for monitoring purposes.

For example, if an employer refuses that a French resident performs more than 29 days of remote work compared to a Luxembourg resident, who would be allowed to do more, such refusal would not be linked to the employee's nationality, but to his country of residence, based on bilateral agreement with France. In principle, any direct or indirect discrimination is prohibited. However, it will be crucial for Luxembourg companies and management to ensure that there is no indirect discrimination based on nationality. This is an additional challenge specific to Luxembourg.

Gerd Müller-Volbehr - Partner, ACURIS Rechtsanwälte – Germany

In the digitalised world of work, employers and employees must adapt to new requirements. The following challenges arise for the Employer 4.0:

Hardware and software equipment

Employees need hardware and software with which they can work in the office, at home and on the move. The company software should be as easy to use as one's own iPhone. In addition, concepts such as 'Bring Your Own Device' are necessary.

IT-security and data protection

Computer systems and data are usually the most valuable assets of many companies and must be protected against failure, loss or theft. At the same time, high legal protection standards apply in data protection. Especially when computer systems can be accessed from anywhere, company data must be protected against unauthorised access by third parties, especially hackers.

Flexible working time models and office concepts

Hybrid working models should promote work-life balance, for which employers must offer flexible working time models such as flexitime or trust-based working time. In addition, working entirely or partly from home offers employers the opportunity to save office space. Balanced desk-sharing models offer employees different rooms for meetings, creative workshops, personal meetings or simply quiet zones.

Cooperative management style – motivating employees

In companies with hybrid work models, classic leadership styles reach their limits. The boss' instructions and controls are difficult to implement when employees work in geographically dispersed areas. Moreover, such a leadership style does not meet the expectations of generations Y and Z. Employers must therefore change the management style of their superiors to encourage and support this process. If management style is not adapted to a hybrid work model, it can have a negative impact on employee motivation.

Agile working methods

In the digital world, requirements for work processes change at very short notice. To be able to react to rapid changes, agile project methods, such as Scrum, have become established. Implementing these working methods requires specialist knowledge and a new, open mindset, as well as corporate culture.

Experiences from Covid-19 lockdowns

The lockdown triggered several times by the Covid-19 pandemic has led to the realisation in many companies that complete activity in the home office or in the form of mobile working can also have negative consequences. Employees can lose their bond with the company. The professional and social exchange between employees decreases and with it a very significant added value for the company. This negative development is often taken into account by allowing home office work or mobile working on 2-3 days per week at most. Care should be taken to ensure that members of a team actually meet, rather than not seeing each other for weeks at a time because they work in the office on different days.

In addition, it has been found that quality of work decreases when employees work purely remotely, and in some cases contractually owed working time is not performed. Preventing these negative consequences is an important task for managers.

Mark D'Alelio - Founder, Legal Asean - Thailand

In the past, discrimination issues were primarily based on gender (which still remains). Employees working daily at the office no doubt are afforded greater benefits in that they can work more closely (face-to-face) with senior employees. Employees seeking work from home or a hybrid approach likely will be at a disadvantage at a traditional Thai company, or for companies that have senior employees, as work from home may not align with the expectations of the older Thai generation (50+). Ultimately, each company needs to align its internal culture to ensure working from home employees are given the same treatment as those in the office.

Download the complete Hybrid Working Publication, covering jurisdictions across world for free here: bit.ly/3KCMYDH

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.