EAT upholds indirect associative disability discrimination claim

  • Posted

An Employment Tribunal upheld a claim of indirect disability discrimination on the basis of an employee’s association with a disabled person in Follows v Nationwide Building Society.

Mrs Follows was employed by Nationwide Building Society from 2011, most recently as a Senior Lending Manager. Her work record was consistently good.

She was employed under a ‘home working contract’, which listed her home address as her main place of work. However, she was required to attend the office for meetings and could be required to work from other locations, even permanently depending on the needs of the business. Mrs Follows attended the office weekly.

Mrs Follows needed to work from home because she was the primary carer for her elderly and disabled mother. Nationwide’s management team was aware of this.

There was a redundancy exercise in 2016 involving Mrs Follows’ team, as fewer Senior Lending Managers would be required. Mrs Follows was not selected for redundancy.

There was a further redundancy exercise in 2017, under which the number of Senior Lending Managers would be reduced. Nationwide required those who remained to be office-based. Throughout the redundancy process, Mrs Follows explained her belief that it was feasible for her current homeworking arrangements to continue under the proposed structure. Other employees came forward to volunteer for redundancy, but Nationwide asked some of them to stay on. Nationwide dismissed Mrs Follows by reason of redundancy in January 2018.

Mrs Follows brought numerous Employment Tribunal claims against Nationwide, including for indirect associative disability discrimination. She succeeded in this claim, in addition to her unfair dismissal and indirect sex discrimination claims.

Indirect discrimination can occur where an employer applies a provision, criterion, or practice (PCP) such as a policy to all staff, which puts people with a certain protected characteristic at a particular disadvantage.

The Equality Act 2010 wording which deals with indirect discrimination requires the person making the claim to have the relevant protected characteristic and suffer the particular disadvantage personally. In Mrs Follows’ case, it was her mother who was disabled, not her personally. However, the Tribunal held that in light of European case law, it needed to read the Equality Act “so as to apply to employees who are associated with a person with a relevant characteristic”. Mrs Follows was associated with her mother.

The Tribunal considered the PCP, which was a requirement that Senior Lending Managers could no longer work at home on a full-time basis. It concluded that “this provision put [Mrs Follows] at a substantial disadvantage because of her association with her mother’s disability as her [principal] carer… 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 had not taken reasonable steps to avoid the disadvantage, and since “there was no discussion about alternatives, there was no evidence on which the decision was based, and [Mrs Follows’] view that the role could continue as she had been doing it was ignored”.

Nationwide was fully aware of the disadvantage Mrs Follows would face. It failed to establish the defence of its PCP being a proportionate means of achieving a legitimate aim.

Her claim of indirect disability discrimination (by association) therefore succeeded.