Associative discrimination where caring responsibilities affected selection for redundancy

Facts

Ms Follows worked for Nationwide Building Society from 2011 as a Senior Lending Manager. Since her mother was disabled and she was the main carer, she worked from home much of the time, coming into the office to perform supervisory functions 2 or 3 days a week. She was dismissed for redundancy in 2018, following a decision by Nationwide to reduce the number of SLMs from 12 to 8, also requiring them to be office-based full time. The reason given for requiring them to be office-based was that they needed to be in the office to provide supervision.

Prior to her dismissal, Ms Follows had received positive appraisals and her supervisory skills had been commended.

Ms Follows bought claims in the employment tribunal for unfair dismissal, disability discrimination (both direct and indirect) and indirect sex discrimination.

Decision

Ms Follows succeeded in her claims for unfair dismissal, indirect disability and indirect sex discrimination. An employment tribunal found that the requirement for onsite supervision was discriminatory and so could not constitute a legitimate aim. Even if it could be a legitimate aim, dismissing Ms Follows was not proportionate as there were other, less discriminatory ways to achieve the aim. 

Ms Follows argued that the requirement to come into the office was indirectly discriminatory on grounds of disability because she could not comply with it due to her mother's disability. While UK law (section 19 of the Equality Act 2010) required the person suffering unfavourable treatment to also possess the relevant characteristic, this is not the case under the Equal Treatment Directive which is essentially wider.

The ET decided to construe the UK legislation on indirect discrimination in a wide and novel way, following the ECJ case of Chez, in which it was held that a person can bring a claim for indirect discrimination, notwithstanding that they do not possess the protected characteristic in question but rather suffer unfavourable treatment alongside those with the protected characteristic.

The tribunal was not convinced that there had been a real need for SLMs to be office-based all of the time. After all, Ms Follows had carried out effective supervision despite being a hybrid worker.   

Why the case matters

While this is only an ET decision, it adopts a novel approach to the question of who may bring a claim for associative discrimination. Given that hybrid working is now so commonplace, together with there being a rise in those with caring responsibilities, claimants and their advisers may bring challenges based on the arguments in this case in future. It could be relevant to requests for flexible work as well as to redundancy dismissals.