In 2010, when the Equality Act was updated, the concept of associative discrimination was enshrined within the legislation as regards direct discrimination. This followed the famous Coleman case, where the protection had been extended to the employee not because of her disability but because she was caring for her disabled child.
Since then, in 2014, a Bulgarian case in the European Court of Justice, Chez Razpredelenie extended the concept of associative discrimination to indirect discrimination.
Reminder: direct discrimination is the idea that because of somebody’s protected characteristic they have been treated in a particular way. That direct discrimination can occur where the reason for less favourable treatment is the protected characteristic of someone with whom the victim associates.
For indirect discrimination to be established under Section 19 of the Equality Act, the Employer is applying some kind of provision criterion or practice to everybody but the Claimant argues that this puts them and those with whom they share a protected characteristic at a particular disadvantage. The employer has the opportunity to defend the case showing it to be a proportionate means to achieving a legitimate aim. Traditionally, this requires the Claimant to have the protected characteristic in question and to suffer the disadvantage personally.
In the Chez case the European Court of Justice held that the protection afforded by the Race Directive which sits behind our law applied irrespective of the ethnic origin of the person who suffered the disadvantage ie: associative indirect discrimination was possible. One of its reasons for doing so was the overarching aim of eliminating all discrimination on ethnic or racial grounds. Thus they were determining that it was sufficient for a person to show that they had suffered a particular advantage alongside a disadvantaged group.
In a recent UK decision of Follows v Nationwide Building Society, Mrs Follows was employed on a Homeworker Contract for around 7 years and the primary reason that she worked from home was to care for her disabled mother. She attended the office 2-3 days a week. She had high ratings in appraisals throughout her employment, including conducting excellent supervision of her team.
Nationwide decided to reduce the number of managers from 12 to 8 and to determine that everyone would have to be office based. The reason that they gave was a greater need for supervision due to a change in the nature of the work and feedback from junior staff who were dissatisfied with the level of supervision provided to them.
Mrs Fellows was put at risk of redundancy and the employer experienced more volunteers than the required reduction in headcount. Mrs Follows didn’t volunteer and wanted to stay in employment but continued to argue that she should retain her existing working from home arrangements. Nationwide it appears approached some of the volunteers for redundancy to request that they stay on but yet dismissed Mrs Follows by reason of redundancy.
Another male colleague, who was not disabled and who was not a carer but also worked from home received the same treatment and was also dismissed.
Mrs Follows brought claims of unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.
The direct discrimination, the disability discrimination claim and the indirect age discrimination claims failed. She was successful in her claim for unfair dismissal, indirect associative discrimination on the grounds of her mother’s disability and indirect sex discrimination. Here we are going to focus on the disability arguments.
The reason why the direct discrimination claim failed was that the correct comparator was her male colleague who wasn’t disabled or a carer – because he received the same treatment as her and was also dismissed, she couldn’t get this claim off the ground. However, the claim of indirect disability discrimination by association was upheld. The Tribunal noted the background with the Chez case and the Tribunal were prepared to read our domestic legislation in the light of the Directive that sits behind it. The requirement to no longer work at home put Mrs Follows at a substantial disadvantage because of her association with her mother’s disability as her principal carer. Nationwide knew of the circumstances and of the disadvantage that Mrs Follows would suffer by its changing requirements.
The legitimate aim relied on by Nationwide was the need to provide more effective onsite supervision and the change in their lending work: given the evidence Mrs Follows’ supervisions were good, the Tribunal felt supervision had to be onsite was itself discriminatory and it couldn’t therefore amount to a legitimate aim. Even if it had been prepared to find that they were legitimate aims it felt that selecting Mrs Follows for redundancy and dismissing her was not proportionate as a means of achieving that legitimate aim, it wasn’t based on any actual evidence or rational judgment, rather it was based on Nationwide’s objective view of dissatisfaction expressed from junior staff together with managers view that the new arrangement would be better. They had also failed to take into account Mrs Follows’ view or her history of excellent supervisory work. It seems that the Tribunal were mindful that Mrs Follows had been attending the office for 3 days a week already and was prepared to continue doing so. It clearly influenced their attitude towards Nationwide being unreasonable.
This case widens the picture of our discrimination law and will be particularly relevant now that we are looking at how we work from home or in the office and hybrid working moving forward.
Whilst the case is at first instance, there is always the opportunity for the Employment Appeal Tribunal to provide more guidance on this subject and employers need to be careful when arguing somebody must return to the office/can’t do their job from home. They must have concrete evidence to rely on to justify their demands.
7 September 2021
Refreshing Law Ltd