A case was brought against Nationwide Building Society by Mrs Follows, which was heard in the Employment Tribunal (ET) and decided on 14 March 2021. The ET upheld a claim of indirect associative discrimination on the grounds of disability.

What elements are required for indirect discrimination to be established?

For indirect discrimination to be established, section 19 of the Equality Act 2010 requires the employee to personally have a protected characteristic and suffer less favourable treatment.

Can there be a wider interpretation of indirect discrimination?

The requirement for the employee to possess the protected characteristic is not a requirement set out in the EU Directives that the Equality Act 2010 (EqA) implemented into UK Law. To that extent, these legal provisions are at odds; the EU Directives theoretically allowing associative indirect discrimination, whilst the EqA as drafted, does not. In this case, the ET applied the wider interpretation.

The ET followed the reasoning in Chez Razpredelenie Bulgaria AD, where the European Court of Justice decided that the concept of associative discrimination, in principle, could be extended to indirect discrimination.

Background to the case

Mrs Follows was employed by Nationwide Building Society (Nationwide) as a Senior Lending Manager (SLM) from December 2011 to January 2018, when she was dismissed. Mrs Follows was allegedly dismissed by reason of redundancy. She was employed on a homeworker contract, the primary reason for this was due to Mrs Follows being the carer for her disabled mother, of which Nationwide was aware. However, Mrs Follows did attend the office two to three days a week.

In October 2017, Nationwide took the decision to reduce the number of SLMs from twelve to eight and determined that all SLMs would need to be office-based. Nationwide’s reasoning for the role to be office-based was a greater need for staff supervision by SLMs as a result of the change in the nature of the work and feedback from junior staff, suggesting dissatisfaction with the level of supervision.

Mrs Follow’s role was put at risk of redundancy. She made it clear throughout the consultation process that she wished to retain her existing arrangements of working. A sufficient number of other employees had volunteered for redundancy, Nationwide approached some of these employees and asked they stay on. Mrs Follows was dismissed.

Consequently, Mrs Follows brought claims of unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination. For the purposes of this article, we will focus on the claim of indirect associative discrimination only

The ET followed the reasoning in Chez Razpredelenie Bulgaria AD, where the European Court of Justice decided that the concept of associative discrimination, in principle, could be extended to indirect discrimination.

What are the key points from this case?

The introduction of the provision requiring SLMs to be office-based put Mrs Follows at a substantial disadvantage because of her association with her disabled mother, as her principle carer.

Nationwide had not discussed alternatives or provided evidence on which the decision was based and ignored Mrs Follows’ view that the role could continue in line with her existing arrangements. The ET held that Nationwide had not taken reasonable steps to avoid the disadvantage.

The ET found the legitimate aim Nationwide relied on, to provide effective on-site managerial supervision, contained a discriminatory element and could not amount to a legitimate aim.

Further, Nationwide failed to consider Mrs Follows’ view that the role could be undertaken from home and her record of excellent supervisory work. The ET concluded, there was no evidence that selecting Mrs Follows for redundancy and dismissing her was a reasonably necessary means of achieving its aim, which could have been achieved through hybrid working.

In conclusion, what does this recent case highlight for employers?

Employers should be aware that even post Brexit, ECJ case law on the Equal Treatment Directive/Framework and the Race Directive forms part of retained EU law. Tribunals must continue to interpret domestic legislation, including the EqA, in line with that EU law, such as the ECJ’s decision in the Chez case referenced above. The Supreme Court and the Court of Appeal may depart from EU case law “when it appears right to do so”. However, it remains to be seen whether they will do that in relation to the principle in Chez.

In the meantime, Employers should consider whether a new provision, criterion or practice (PCP) could disadvantage employees as a result of their association with someone who has a protected characteristic. It would be prudent to consult with employees in relation to possible disadvantages they might suffer as a result of a PCP, depending on the significance of a proposed PCP. Employers should remember to undertake this action during a redundancy consultation process and always consider whether it is a proportionate means of achieving a legitimate aim.

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David is the lead employment partner for the firm’s education clients and provides sector specialist advice to universities and colleges. He regularly provides clients with strategic advice on issues such as major restructures; TUPE; and trade union relations. David also undertakes a significant amount of contentious work for both education and non-education clients, including representation at employment tribunals, the EAT and the Court of Appeal.

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Published: 1st October 2021
Area: Employment

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