In the case of Follows v Nationwide Building Society an Employment Tribunal has upheld a claim of indirect associative discrimination on the grounds of disability. We take a look at the case and its implications for employers.
Mrs Follows was employed by Nationwide as a Senior Lending Manager (SLM) on a homeworker contract and although she mainly worked from home she did attend the office two to three days a week. Her principal reason for working from home was because she was a carer for her disabled mother.
As part of a redundancy process to reduce the number of SLMs, there was a requirement that all SLMs needed to be office based due to a greater need for staff supervision and in response to junior staff being dissatisfied with the level of supervision. Mrs Follows was made redundant and she brought various claims including for indirect associative discrimination on the grounds of disability.
Under the Equality Act 2010 (EqA), a victim does not need to have the protected characteristic to suffer direct discrimination, they can suffer less favourable treatment by reason of the protected characteristic of someone with whom they associate. For indirect discrimination under the EqA, however, a person must both personally suffer the disadvantage and have the protected characteristic. The requirement that the individual must have the protected characteristic is not a requirement set out in the European Directives which the EqA implemented into UK law. In the case of Chez Razpredelenie Bulgaria AD C-83/14, the ECJ held that the concept of associative discrimination could, in principle, extend to indirect discrimination.
The ET here concluded that 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. Nationwide failed to discuss alternatives with Mrs Follows ignoring her view that the role could continue with the existing arrangements nor did they provide evidence for their decision leading the ET to conclude that Nationwide had not taken such steps as is reasonable to avoid the disadvantage. They were also fully aware of Mrs Follows circumstances and the disadvantage she would suffer by requiring her to no longer work from home.
The legitimate aim relied on of needing to provide more on-site staff supervision was itself discriminatory and in any event, dismissing Mrs Follows was not a proportionate means of achieving a legitimate aim as it was not based on real need rather on the subjective view following some dissatisfaction expressed by some junior staff and the management view that it would be "better". There were other non-discriminatory ways of achieving that aim including attending the office for two or three days a week, which Mrs Follows was already doing.
This is an ET decision so is not binding but is significant as it shows that even though the EqA requires the individual personally to have the protected characteristic to claim indirect discrimination, tribunals may interpret the provision more widely in accordance with Chez. Following Brexit, courts and tribunals must interpret domestic legislation, including the EqA, in line with EU law although the Court of Appeal and the Supreme Court may depart from this when it appears right to do so.
When considering implementing new policies and practices, employers should be aware of the potential impact they could have on their staff and need to consider whether an employee's association with a protected characteristic would put them at a disadvantage. It is advisable to consult with employees on the possible disadvantages they may suffer as a result of a new policy and consider alternatives to alleviate the issues. Being aware of the particular circumstances of an employee can help to inform the employer of the reasonable steps that can be taken to avoid the disadvantage.