International law firm Osbourne Clarke has made the news this week by confirming that with effect from 2024, their staff bonus scheme for staff will be dependent upon office attendance. Specifically, full-time employees will only be eligible for a bonus if they spend three days or more per week in the office or with clients.

The firm’s Chief People Officer, Graham de Guise, highlighted that attendance was just one factor, as staff would need to reach the firm’s expectations across a number of other areas, such as completing mandatory training, meeting time recording targets and contributing to wider firm initiatives. He further explained that they appreciate there are a number of reasons why attendance in the office might not be possible and the firm would take these into consideration where necessary.

Basing bonuses on office attendance has the potential to be discriminatory if employees provide valid reasons for not attending the office. By way of example, if they are pregnant, have a disability or childcare commitments.

Under the Equality Act 2010, the main piece of legislation governing discrimination law, no worker should face discrimination arising from a disability, gender, sex or pregnancy/maternity, to name but a few. If these reasons contribute to a worker’s absence or make it more difficult for them to attend the office, then this could leave the employer open to potential claims of discrimination.

Introducing any bonus policy does come with inherent risks, especially if homeworking has already been granted to your employees as a contractual right, meaning that homeworking becomes part of their employment contract and cannot be changed, unless there is the contractual flexibility to do so of course.

Employers would need to ensure that remote working has not already been granted as a contractual right. If homeworking is part of the employment contract then it would also be difficult to explain why remote workers will be treated less favourably than those who regularly come into the office. As such, would be important to consider each case on an individual basis if they are unable to meet the minimum attendance requirements.

From an employer’s perspective, bonus schemes such as the instant case provides an incentive for employees to work hard, meet their targets and regularly attend the office, the benefits of which include maintaining and building on client and colleague rapports.

Arguably, office attendance further helps when training new colleagues and working collaboratively. Perhaps an influential reason in the instant case for the introduction of this bonus scheme is that Osbourne Clarke recently opened a new office in Bristol, which they are keen to encourage employees to work from.

In summary, bonus schemes based on attendance can run the risk of being discriminatory for a variety of reasons and staff will take particular umbrage where they feel that they are being treated less favourably than employees that regularly attend the office. There are certainly some valid considerations employers would need to take into account before introducing a bonus scheme based on office attendance.

Most importantly, employers would need to ensure that all employees are treated fairly and not discriminated upon based on any ‘protected characteristic’ under the Equality Act 2010, such as sex, disability or pregnancy/maternity.

Lloyd Clarke is a Partner of Attwells Solicitors LLP and heads up the Firm’s Employment Law Department. Lloyd is a member of the Employment Lawyers Association and operates flexible funding arrangements including popular retainer packages, fixed fees and reduced hourly rates.

Contact Lloyd Clarke on 01206 239761 or for a free telephone consultation.