Indirect associative discrimination

Posted on October 7th, 2021

Direct disability discrimination can occur where an employer treats an employee less favourably because of the disability of another person, for example, an employee with a disabled child.

Indirect disability discrimination can occur where an employer applies a provision, criterion or practice (PCP) that puts a group of workers sharing a protected characteristic at a disadvantage.

In Follows v Nationwide Building Society, it was held that the requirement for a senior manager to be office-based, when she was the main carer for her disabled mother, amounted to indirect disability discrimination by association.

Home working

Mrs Follows was employed by Nationwide Building Society as a senior lending manager. She was dismissed in January 2018, by reason of redundancy.

Her contract stated that her principal place of work was her home, due to the fact she was the carer for her disabled mother. Her employer accepted the fact her mother was disabled for the purposes of the Equality Act 2010.

Mrs Follows attended the office for two to three days a week and had high appraisals throughout her employment.

Reduce staff numbers

In October 2017, a decision was taken to reduce the number of senior lending managers and all would need to be office-based. This was following feedback from junior staff that they did not have sufficient supervision and a greater need for supervision was required due to a change in the nature of work.

Voluntary redundancy and consultation

Sufficient volunteers came forward to meet the required reduction in senior lending managers. Throughout consultation, the employee stated her wish to remain working from home and attending the office. Despite this, Nationwide approached volunteers for redundancy to stay on and dismissed Mrs Follows for redundancy.

A further colleague with similar working arrangements to Mrs Follows was also dismissed for redundancy.

Claims to employment tribunal

Mrs Follows brought claims for unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.

Successful claims

The employment tribunal (ET) upheld the claims of unfair dismissal, indirect associative discrimination and indirect sex discrimination. The claims of direct associative discrimination and indirect age discrimination failed.

Indirect associative discrimination

The ET found that the reason for less favourable treatment was not because of the employee’s caring responsibilities, but because of her status as a homeworker. Her colleague, who was not a carer, having been treated the same. Nationwide had conceded that it had applied a PCP that senior lending managers could no longer work from home on a full-time basis. The ET concluded that carers for disabled people were less likely to be able to be office-based. Therefore, she was put at a substantial disadvantage because of her association with her mother’s disability as her principal carer.

Given that Nationwide had failed to provide evidence on which the decision was based, failed to consider alternatives and ignored the employee’s view that the role could continue on existing arrangements, it was held they had not taken such steps as were reasonable to avoid the disadvantage.

The ET further held that the need for on-site supervision in itself contained a discriminatory element and could not amount to a legitimate aim. Even if it had been a legitimate aim, selecting the employee for redundancy and dismissing her was not a proportionate means of achieving that aim. It was simply based on some dissatisfaction by junior staff.

Indirect sex discrimination

The ET also held that the provision to work in the office was also a substantial disadvantage to women because more women than men are primary carers for elderly relatives. This element of the claim therefore also succeeded.

Importance of consultation

It is important for schools to ensure a thorough and fair consultation process takes place before selection for redundancy. This ensures that employees’ views and any possible alternatives are considered.

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