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Employment Tribunal Upholds Claim of Indirect Associative Discrimination

on Friday, 17 September 2021.

In Follows v Nationwide Building Society, an employment tribunal (ET) upheld a claim of indirect associative discrimination on the grounds of disability.

Discrimination Claims

Mrs Follows was employed by Nationwide Building Society (Nationwide) as a Senior Lending Manager (SLM). She was employed on a homeworker contract, in which her principal place of work was her home, but she attended the office two to three days a week. The primary reason for working from home was because Mrs Follows was the carer for her disabled mother, a fact which Nationwide's management knew and accepted.

In October 2017, Nationwide began a redundancy process to reduce the number of SLMs, and included as part of that process a requirement that all SLMs were office-based going forward. Nationwide argued that this enabled better staff supervision with junior colleagues. Mrs Follows was subsequently made redundant.

Mrs Follows brought various claims, including for direct and indirect associative discrimination on the grounds of disability.

Legal Background

Direct discrimination can occur where the reason for the less favourable treatment is the protected characteristic of someone with whom the employee associates.

In the case of Chez Razpredelenie Bulgaria AD, the European Court of Justice (ECJ) held that the concept of associative discrimination could be extended to indirect discrimination. Essentially, the ECJ ruled that a person need not possess a protected characteristic in order to bring a claim for indirect discrimination. It is sufficient for a person to show that they suffer a particular disadvantage, alongside a disadvantaged group.

The ET Decision

The claim of direct associative discrimination on the grounds of disability failed as Nationwide could point to a  comparator who was also made redundant. Mrs Follows' colleague, Mr Gregory, who was not disabled nor a carer, and was employed on a homeworker contract, was also dismissed.

The ET upheld the claim of indirect disability discrimination by association.

The ET considered that by the nature of their role, employees caring for disabled people are less likely to be able to satisfy a 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.

Coronavirus guidance employers

Further, although Nationwide were fully aware of Mrs Follows' mother's disability, they had not discussed alternatives, had not provided evidence on which the decision was based, and had ignored Mrs Follows' view that the role could continue as per her existing arrangements. So the ET held that Nationwide had not taken such steps as were reasonable to avoid the disadvantage.

Nationwide argued that it was a legitimate aim for it to require SLMs to provide on-site managerial supervision and support to more junior staff. The ET held that the need for on-site supervision in itself contained a discriminatory element and, as such, could not amount to a legitimate aim. Further, the ET stated that even if the aim had been legitimate, making Mrs Follows redundant was not a proportionate means of achieving that aim. This was because there were other non-discriminatory means of achieving that aim, including allowing hybrid working as Mrs Follows had already been doing.

Takeaway Points for Employers

It is important to note that this judgment from the ET is not binding and the redundancy process in this case took place before the pandemic. This decision provides a warning to employers to be careful about requiring employees to return to their pre pandemic place of work for purposes of supervision alone, and to the need to seek an understanding of an employee's reasons as to why they may be reluctant to return to the place of work.

For more information on associative discrimination please contact Mark Stevens in our Employment Law team on 0117 314 5401, or complete the form below.

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