The Labor Court (HEY) upheld a complaint for indirect associative discrimination linked to disability in Follows v. Nationwide Building Society AND / 2201937/18.
Ms. Follows was employed by Nationwide Building Society (At national scale) as Senior Loan Manager (GDT) from December 2011 to January 2018, when she was terminated. Ms Follows’ terms of employment allowed her to work from home, which she did two to three days a week to care for her disabled mother (of which Nationwide was aware).
In October 2017, Nationwide decided to reduce the number of SLMs and require them to be only office based. Nationwide’s reasoning for change was a greater need for staff supervision, in response to feedback from subordinate employees who were dissatisfied with the level of supervision available to them. Ms Follows’ job was threatened with dismissal, and during the consultation process she made it clear to Nationwide that she wanted to keep her current working from home arrangements. Despite the fact that a sufficient number of other employees volunteered for a layoff, Nationwide fired Ms Follows. As a result, she lodged complaints of unfair dismissal and discrimination, the focus of this topic being indirect associative discrimination, which has been successful.
The ET concluded that the introduction of the new provision requiring BMS to be based in an office placed Ms. Follows at a significant disadvantage due to her association with her disabled mother, as a primary caregiver. Despite the fact that under Article 19 of the Equality Act 2010 (EQA 2010), indirect discrimination can only apply to those who personally possess a “protected characteristic” (in this case, a disability) and experience less favorable treatment, the ET has here taken a broader interpretation, to include those associated with someone who has a protected characteristic.
In adopting this approach, the ET followed the reasoning of Chez Razpredelenie Bulgaria AD where the European Court of Justice (CJEC) had decided that the notion of associative discrimination could, in principle, be extended to indirect discrimination against employees who are associated with a person presenting a relevant characteristic (i.e. Ms. Follows with the disability of his mother).
The ET also found that Nationwide’s justifications fell short of the standards of “proportionate means to achieve a legitimate objective”. Nationwide had argued that there was a need to ensure effective supervision of on-site management. However, this was considered to have a discriminatory element in itself and, as such, could not constitute a legitimate aim. Nationwide also failed to consider alternative and non-discriminatory means to achieve its goal, failed to provide sufficient evidence, and ignored evidence proving Ms. Follows could continue to perform her role in a hybrid work environment. . Even if the objective was legitimate, the ET concluded that the selection of Ms. Follows for termination and her termination was not a proportionate means of achieving this objective.
What does this mean for employers?
While this decision is not binding on future courts, it is important because it demonstrates that although the wording of the EqA 2010 requires the individual themselves to have a protected characteristic in order to invoke indirect discrimination, courts can interpret that protection more broadly, in accordance with EU law. Even though the UK has now left the EU, courts must continue to interpret national law in accordance with EU law (such as the ECJ ruling in At the house of), although the Court of Appeal and the Supreme Court may depart from it if they deem it appropriate. Employers should carefully consider whether new practices, criteria and policies (PCP) could put employees at a disadvantage because of their association with someone who has a protected characteristic. Depending on the nature and importance of a proposed PCP, it may be advisable to consult with employees about the potential inconvenience they may experience as a result. Likewise, the same task should be undertaken during a consultation process on layoffs. Employers should also always consider whether this is a proportionate means of achieving a legitimate objective.