Indirect Disability Discrimination By Association

With furlough having now ended, and many employers implementing (or having implemented) plans to bring employees back into the workplace after 18 months of working from home due to the Covid-19 pandemic, the Employment Tribunal has made a decision that all employers will need to consider when deciding on home working policies.

In the case of Follows v Nationwide Building Society, the Employment Tribunal ruled that indirect disability discrimination can occur even where the employee is not disabled, but is associated with someone who is. This means that if an employer applies a policy which indirectly discriminates against an employee who cares for a disabled person, and which cannot be justified by the employer, this may amount to disability discrimination.

Mrs Follows was a Senior Lending Manager (SLM) for Nationwide. In 2017, Nationwide made the decision to reduce the number of SLM’s and that following the redundancy process, all remaining SLM’s be based in the office. Mrs Follows worked 2-3 days per week from home to care for her disabled mother and during the redundancy process made it clear that she wished to retain this arrangement. Mrs Follows was made redundant (despite there being sufficient SLM’s who volunteered for redundancy) and argued, amongst other claims, that the policy to require SLM’s to be office based put her as a carer for a disabled person, at a disadvantage when compared to non-carers in that they were (and Mrs Follows was) less likely to be able to meet a requirement to be solely office-based and had therefore been indirectly discriminated against.

Nationwide argued that the introduction of the policy was to provide more effective on-site supervision and therefore was a legitimate aim, however this was not based on any actual evidence and was just their belief that the supervision would be better, something that Mrs Follows was able to counter as she had evidence of a history of excellent supervision. The Tribunal deemed the policy discriminatory so could not be a legitimate aim and held that even if it had been a legitimate aim, Mrs Follows’ redundancy was not a proportionate way of achieving that aim as the hybrid way she had been working could have been allowed to continue and still achieved the same aim.

As the decision was made by the Employment Tribunal, it is not binding on other Tribunals, however, it is likely to be persuasive in any future decisions. The decision serves as a timely warning to employers about introducing policies that may put employees with a protected characteristic at a disadvantage, and now employees associated with someone who has a protected characteristic. Whilst the Equality Act provides for a defence to such policies, if an employer is seeking to justify the policy as having a legitimate aim, to ensure that they have evidence to support their justification and that it is a proportionate way of achieving that aim.

If you need help or guidance with introducing a new policy into the workplace, please get in touch to arrange an appointment, by either emailing us at hello@dawsonradford.co.uk or telephoning on 01246 932 100 and we will be happy to help.