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In the recent case of Follows v Nationwide Building Society, an Employment Tribunal upheld a claim of indirect associative discrimination on grounds of disability for the first time in UK law.
In this case, Mrs Follows was employed by Nationwide as a Senior Lending Manager working from home. Mrs Follows needed to work from home as she was the carer for her disabled mother.
In October 2017, Nationwide decided to undertake a redundancy exercise and reduce the headcount of Senior Lending Managers from 12 to 8. It decided that all Senior Lending Managers would need to be office-based going forwards, largely due to them needing to undertake greater levels of supervision. As such, Mrs Follows was put at risk of redundancy.
Nationwide asked if anyone wished to take voluntary redundancy and there were more than enough volunteers in order to meet the required reduction. Despite having enough volunteers, Nationwide only accepted some of the voluntary redundancy applications. Mrs Follows did not opt for voluntary redundancy and wanted to remain working from home as she believed that the role could continue as per her existing arrangements. Nevertheless, she was made redundant. Her colleague, Mr Gregory (who was also a homeworker but was not disabled or had caring responsibility) was also made redundant).
Mrs Follows brought a number of claims against Nationwide, including claims of direct and indirect associative discrimination on grounds of disability.
Mrs Follows' claim for direct associative discrimination failed on the basis that she had not been treated any differently than the comparator, Mr Gregory. The Tribunal concluded that the correct comparator in this case was an employee on a homeworker contract who was either not disabled or associated with a disabled person.
However, she was successful in her claim of indirect associative discrimination. Before this decision, UK law only recognised that claims could be made for direct associative discrimination – so what has changed?
Indirect discrimination can occur where an employer applies a provision, criterion or practice ("PCP") such as a policy to staff, which puts people with a certain protected characteristic at a particular disadvantage. The Equality Act 2010 ("EA") states that for indirect discrimination to be established, the Claimant must have the relevant characteristic (for example, a disability) and suffer the disadvantage personally.
When turning to the issue of indirect associative discrimination, the Tribunal considered the European Court of Justice decision in the case of Chez Razpredelenie Bulgaria AD C-83/14which concluded that associative discrimination could in principle extend to indirect discrimination. The ECJ's reasoning was that the Race Directive (which isn’t a part of UK law) was intended to benefit those who are associated with a protected class who suffer "less favourable treatment or a particular disadvantage on one of those grounds".
The Tribunal concluded that the EA must be read so that it is consistent with Chez as the ECJ's reference to "a particular disadvantage" is the same wording found in the definition of indirect discrimination in the EA. Accordingly, the relevance of the EA requiring Claimant's to have the relevant protected characteristic must be extended to include employees who are associated with the person with a relevant characteristic.
The Tribunal considered the PCP, which was the requirement that Senior Lending Managers could no longer work at home on a full-time basis. The Tribunal concluded that employees caring for disabled people are less likely to be able to satisfy the requirement to be office-based than non-carers. As such, the requirement to no longer work at home put Mrs Follows at a substantial disadvantage because of her association with her mother's disability.
Nationwide were fully aware of Mrs Follows' caring responsibilities and the disadvantage she would suffer if she could no longer work from home. Despite this, Nationwide did not discuss alternative options and ignored Mrs Follows' opinion that she could still do the role working from home and had not provided any evidence to explain why the role had to be office based.
Despite leaving the EU, Courts and Tribunals must continue to interpret domestic legislation in line with EU law, although the Court of Appeal and the Supreme Court may depart from EU law "when it appears right to do so". Therefore, whilst this decision is only a first instance decision and not binding on other Tribunals, it will be interesting to see whether the higher courts follow the decision in Chez when the issue of indirect associative discrimination arises.
Employers should be mindful of this decision, particularly at a time where businesses are trying to encourage the majority of their workforce back into the office. Where employees are reluctant to return, we would encourage employers to fully understand the reasons as to why that is and to seek advice from your usual Foot Anstey contact if necessary.