The Employment Tribunal (ET) has upheld a claim of indirect associative discrimination related to disability in Follows v. Nationwide Building Society ET/2201937/18.
Mrs Follows was employed by Nationwide Building Society (Nationwide) as a Senior Lending Manager (SLM) from December 2011 until January 2018, when she was made redundant. The terms of Mrs Follows’s employment contract enabled her to work from home, which she did two to three days a week to care for her disabled mother (of which Nationwide were aware).
In October 2017, Nationwide decided to reduce the number of SLMs and require them to be solely office-based. Nationwide’s reasoning for the change was a greater need for staff supervision, in response to feedback from junior staff who were dissatisfied with the level of supervision available to them. Mrs Follows’s job was put at risk of redundancy and, during the consultation process, she made it clear to Nationwide that she wanted to keep her current homeworking arrangements. Despite the fact that a sufficient number of other employees had volunteered for redundancy, Nationwide dismissed Mrs Follows. As a result, she brought claims for unfair dismissal and discrimination, the focus of this topic being indirect associative discrimination, which was successful.
The ET concluded that the introduction of the new provision requiring SLMs to be office-based put Mrs Follows at a substantial disadvantage because of her association with her disabled mother, as her primary carer. Despite the fact that, under section 19 of the Equality Act 2010 (EqA 2010), indirect discrimination can only apply to those who personally possess a “protected characteristic” (in this case, a disability) and suffer less favourable treatment, the ET here followed a wider interpretation, to include those who are associated with someone who has a protected characteristic.
In adopting that approach, the ET followed the reasoning in Chez Razpredelenie Bulgaria AD where the European Court of Justice (ECJ) had decided that the concept of associative discrimination could, in principle, be extended to indirect discrimination in respect of employees who are associated with a person with a relevant characteristic (i.e. Mrs Follows with her mother’s disability).
The ET also found that Nationwide’s justifications failed to meet the standards of “proportionate means of achieving a legitimate aim”. Nationwide had argued that there was a need to provide effective on-site managerial supervision. However, this was considered to have a discriminatory element in itself and, as such, could not amount to a legitimate aim. Nationwide also failed to take into account alternative, non-discriminatory means of achieving its aim, failed to provide sufficient evidence and disregarded evidence that proved Mrs Follows could continue to perform her role within a hybrid-working environment. Even if the aim had been legitimate, the ET concluded that selecting Mrs Follows for redundancy and dismissing her was not a proportionate means of achieving that aim.
What does this mean for employers?
While this decision is not binding on future tribunals, it is significant because it demonstrates that, although the wording of the EqA 2010 requires the individual themselves to have a protected characteristic in order to claim indirect discrimination, tribunals may interpret this protection more widely, in line with EU law. Even though the UK has now left the EU, tribunals must still continue to interpret domestic legislation in line with EU law (such as the ECJ’s decision in Chez), although the Court of Appeal and Supreme Court may depart from this if they consider it appropriate to do so. Employers must carefully consider whether any new practices, criteria and policies (PCPs) could disadvantage employees as a result of their association with someone who has a protected characteristic. Depending on the nature and significance of a proposed PCP, it may be wise to consult with employees regarding any potential disadvantages they might suffer as a result. Similarly, the same task should be undertaken during a redundancy consultation process. Employers should also always ask themselves whether this is a proportionate means of achieving a legitimate aim.