An employment tribunal has held that an employee who was made redundant when she could not be fully office based because she cared for her disabled mother had suffered indirect associative disability discrimination.
Background
Claims of indirect associative discrimination cannot be brought under the UK's Equality Act 2010. Any indirect discrimination claims need to be brought by the person having the protected characteristic themselves. However, European discrimination legislation does allow for indirect associative claims on the basis of someone else's protected characteristic. Following Brexit, UK courts are still required to interpret domestic legislation in line with European legislation, although the Court of Appeal and the Supreme Court may depart from this when it appears right to do so. This case is particularly interesting because it shows a UK employment tribunal allowing a claim of indirect associative discrimination, basing its decision on EU law.
The facts
Mrs Follows was employed by Nationwide Building Society as a senior lending manager (SLM). She is not disabled, but was the primary care giver for her disabled mother. Because of her caring responsibilities, she was employed under a home working contract, although she tended to work from the office on two or three days a week.
Nationwide decided to reduce the number of SLMs. As part of the redundancy process, the decision was taken that all SLMs would need to be office based. There were two main reasons given by Nationwide for this decision. First, changes in the work resulted in a greater need for staff supervision by SLMs. Secondly, feedback from junior staff suggested dissatisfaction with the level of supervision provided.
Mrs Follows was made redundant, and successfully brought several claims in the employment tribunal, including unfair dismissal, indirect sex discrimination and a claim that she had suffered indirect associative disability discrimination. In arguing her indirect associative disability discrimination she said that the requirement to be office based was a provision that put her at a substantial disadvantage because of her association with her disabled mother as her mother's primary carer. The employment tribunal agreed that she had been put at such a disadvantage and held that her dismissal was not a proportionate means of achieving a legitimate aim, and was therefore not objectively justified. Mrs Follows had therefore suffered indirect associative disability discrimination. The tribunal awarded her £345,000 by way of remedy.
It was found that Nationwide had made some mistakes which contributed to the finding against it. It had failed to discuss alternatives with Mrs Follows, and it had ignored her view that the role could continue with the existing arrangements. There was no evidence that it had considered the balance between the clearly discriminatory effect on Mrs Follows of enforcing the requirement to work in the office full time and Nationwide's needs. There was no evidence that the decision to dismiss Mrs Follows was based on a real need, rather than a subjective view following some dissatisfaction expressed by some junior staff, and a management view that it would be "better" for her to work from the office. There would also have been less discriminatory ways of achieving Nationwide's aim of providing increased on-site management and support, including attending the office for two or three days a week, which Mrs Follows was already doing.
What does this mean for employers?
While tribunal decisions are not binding on other tribunals this case has not been appealed and is indicative of how the law might be applied in similar circumstances. Until a case on this point is appealed, we will not know whether higher courts would agree that claims of indirect associative discrimination can be brought in the UK. There is a risk for employers that such a claim can be successfully run though we see credible arguments indirect associative discrimination claims are not permitted under EU law. The government has got involved in this issue and recently produced draft legislation amending the Equality Act 2010 to reflect the European position noted in the background above. This amendment allows employees who don't have a protected characteristic but suffer the same disadvantage as those with the protected characteristic to bring an indirect discrimination claim. What suffering the same disadvantage means is likely to be the subject of litigation and we will keep you posted on this developing area. We do not read this proposed change as generally opening the door to carers of disabled people bringing indirect associative discrimination claims: for example, we do not think Mrs Follows would have succeeded with her claim in reliance on this proposed law change.
The potential impact of this case is that employees who care for disabled people may bring indirect discrimination claims. This is particularly likely in the context of flexible working arrangements.
Employers should be wary of blanket requirements for specific working arrangements, and make sure that they consult with employees about their individual needs, including the needs of women with childcare duties, disabled employees and (in light of this case) employees who care for disabled people. There will also be a specific requirement to consult under the new flexible working regime due to come into force next year. Employers should make sure that they consider alternative working practices (and document that they have done so), and that they have evidence that there is a real need to impose specific working patterns.
Mrs J Follows -v- Nationwide Building Society (Remedy judgment)
