Associative indirect discrimination: returning to work full time
Follows v Nationwide Building Society
An employee who cared for her disabled mother was indirectly discriminated against on the grounds of disability, despite not having a disability herself.
Under the Equality Act 2010, discrimination because of association with a person with a protected characteristic is only expressly prohibited in relation to direct discrimination and harassment - indirect discrimination claims can only be brought by a claimant who themselves has the protected characteristic.
Ms Follows worked for Nationwide as a Senior Lending Manager (SLM) under a home working contract because she had primary caring responsibilities for her disabled mother. She went into the office two to three days a week. Nationwide began a restructuring procedure where they needed all SLMs to be wholly office based to enable better staff supervision. Ms Follows was put at risk of redundancy. As part of the consultation process, there were more volunteers for redundancy than Nationwide needed. Ms Follows did not volunteer for redundancy. During the consultation, she asked to keep her current working arrangement and agreed to continue attending the office for a few days a week but she was still made redundant. She brought tribunal claims of unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.
Her claims for unfair dismissal and indirect associative discrimination on grounds of disability were upheld.
The tribunal noted that the ECJ, in Chez Razpredelenie Bulgaria, established that the concept of associative discrimination could in principle be extended to indirect discrimination. Ms Follows had caring responsibilities for her disabled mother which meant that she could not be a purely office-based worker. The new measures being implemented by Nationwide meant that she was put at a disadvantage through her association with her mother’s disability and therefore the decision to make her redundant was also discriminatory.
It is, held the tribunal, a self-evident fact that carers for disabled people are less likely than non-carers to be able to satisfy a requirement to be office-based, because of their care commitments. Nationwide’s aim of providing on-site supervision was not legitimate, as the need to be on site was itself discriminatory. However, even if there had been a legitimate aim, Ms Follows’ dismissal was not a proportionate means of achieving that aim, given that a hybrid arrangement could have worked on the facts. The tribunal was not satisfied that the requirement to be fully office-based corresponded to a real need, nor that it was based on actual evidence or rational judgement. The Equality Act must be read so as to apply to employees who are associated with a person with a protected characteristic.
Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/2201937_2018.pdf
Whilst this decision is not binding on other tribunals, it’s definitely ‘one to watch’. As this case is based on what is called (post-Brexit) retained EU law, the Supreme Court and the Court of Appeal may depart from EU case law ‘when it appears right to do so’. Given the clear wording of the Equality Act (which on its face does not permit such claims), it will be interesting to see in the future if they would exercise their right to depart from this ECJ decision in similar circumstances.
It is however the first time that the Chez decision has been applied in England and therefore extends indirect discrimination law to cover disadvantage to a group defined by association with individuals with a protected characteristic.
The employer can always raise a defence of objective justification –this is a proportionate means of achieving a legitimate aim - and here that defence failed. Given the last 18 months and the fact that so many businesses have functioned perfectly well without being in the office, a blanket requirement to be in full time is going to be difficult to justify without there being more.