In the recent case of Follows v Nationwide Building Society, an employment tribunal has allowed a claim for indirect discrimination based on the claimant’s association with a disabled person. The tribunal followed a European Court of Justice case from 2015 (retained law post Brexit) which held that indirect discrimination claims may be brought by a person not possessing a protected characteristic.
The wording of the Equality Act 2010 enables employees to bring direct disability discrimination claims where they themselves are not disabled, but they have been treated less favourably because of the disability of someone they are associated with. So, for example, an employee who cares for their disabled family member, can bring a direct disability discrimination claim if they are treated less favourably because of the disability of their family member.
Up until now, the UK courts and tribunals have not considered whether the claim of indirect disability discrimination can apply where the employee is not disabled, but is associated with someone who is. The specific wording of the Equality Act does not appear to allow this.
Mrs Follows was employed by Nationwide Building Society (Nationwide) as a Senior Lending Manager (SLM). She was employed on a homeworker contract as she cared for her disabled mother, but did attend the office two or three days a week. Nationwide decided in 2017 to reduce the number of SLMs and to make all the remaining roles office-based. The given reason was a greater need for staff supervision.
Mrs Follows was told she was at risk of redundancy. During the consultation procedure, Mrs Follows made it clear that she wanted to stay. She felt her working arrangements could continue as she did attend the office regularly and had a documented history of excellent supervision of individuals within the team. Despite the fact that Nationwide had too many volunteers for redundancy, Mrs Follows was made redundant.
She brought various claims including direct and indirect associative discrimination on the grounds of disability.
Mrs Follow’s claims for direct discrimination by association failed. A homeworking colleague who was not disabled and not associated with someone disabled was dismissed for redundancy in the same way as Mrs Follows. The tribunal found that the reason for the less favourable treatment was not because of Mrs Follows' caring responsibilities but because of her status as a homeworker.
However, the tribunal upheld the claim of indirect disability discrimination by association. Nationwide had applied a criterion that all SLMs should work in the office. Those with caring responsibilities for disabled relatives, like Mrs Fellows, would find it more difficult to comply with this criterion than those who did not have caring responsibilities. The tribunal found that Nationwide could not justify this by showing it was a proportionate means of achieving a legitimate aim. The tribunal held that their aim of providing effective on-site supervision itself contained a discriminatory element so could not be a legitimate aim. The aim was not based on actual evidence or rational judgement. Even if it had been, Nationwide could have achieved this aim by a less discriminatory measure – that being to allow Mrs Fellows to continue to work from home, attending the office two or three days a week.
Although the wording of the Equality Act on its face does not allow such a claim to be made, the tribunal held that the Act must be read so as to apply to employees who are associated with a person with a protected characteristic. The tribunal relied on a pre-Brexit European Court of Justice case, which is now part of retained EU law.
This is only a first instance tribunal decision, so is not binding on other tribunals. However this decision is likely to be persuasive when other such claims arise. Employers should be alive to the risks when dealing not only with disabled employees, but also with carers of disabled persons.
This case also highlights the importance of setting out legitimate aims based on evidence and rational judgement. Simply relying on an aim that management thinks is “better” is not enough.
As this case is based on 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, it will be interesting to see in the future if they would exercise their right to depart from the ECJ case in these circumstances.