If an employer offers certain perks for employees in the office (free food and drink, activities with rewards, etc.), could it be liable for discrimination against remote employees?
Question: If an employer offers certain perks for employees in the office (free food and drink, activities with rewards, etc.), could it be held liable for discrimination against remote employees?
Answer: It is very unlikely that an employer would be be liable for discrimination by offering some perks to in-office employees and not offering them to their remote employees.
Discrimination is an action or decision resulting in unfair or negative treatment of a person based on a ground protected by human rights legislation. Human rights protected grounds vary among Canadian jurisdictions. Work location or environment is not a protected ground, but that is not necessarily the end of the matter. An employer will have to consider why it is that the negatively affected remote employee is working remotely.
If the employee is working remotely as an accommodation due to a protected characteristic, the question will arise as to whether all the circumstances of the remote work constitute an appropriate accommodation. We know that employers have the duty to accommodate to the point of undue hardship; however, the accommodation offered must be appropriate.
Inherent in this expectation for accommodation is the need for employers treat their employees equitably but not necessarily the same. Given that the remote work environment is, by definition, different from an in-office work environment, employees should expect there to be some differences, regardless of whether they are working remotely as an accommodation or simply by choice. While remote employees may miss out on some of the in-office perks, they do not have to commute or worry about parking, they have full access to a kitchen and a fridge and they have significantly more control over the setup of their work environment along with many other "perks" that in-office workers do not have.
Accommodative measures come with an inherent trade-off. In this instance, while the employee may be able to do their work in an environment that well suits their individual, protected needs, it does not mean that they will have access to all the same perks as their co-workers, just as their co-workers do not have access to the remote workers’ accommodations. Nonetheless, if the perks are meaningful, an employer would be well advised to consider providing them to the employee who is remote working as part of a human rights accommodative measure, if they can be, without causing undue hardship.
Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected]