Mrs Follows was employed by Nationwide as a Senior Lending Manager from 01 December 2011 until her dismissal on 15 January 2018, which Nationwide said was due to redundancy.
Mrs Follows’ contract was a ‘home working contract’ which meant that her principal place of work was her home address. However, she was required under that contract to attend the office for meetings, which she did on a weekly basis. Mrs Follows had to work from home because of her caring responsibilities for her elderly and disabled mother. She maintained high ratings and appraisals throughout her employment whilst working from home, which specifically highlighted a history of excellent supervision of junior members of her team.
In 2017, Nationwide sought to reduce the number of Senior Lending Managers within Mrs Follows’ department and required all Senior Lending Managers to be office-based due to, in their view, there being a greater need for junior staff supervision.
Nationwide subsequently started a redundancy process during which Mrs Follows was put at risk. Throughout the consultation process, Mrs Follows made it clear to Nationwide that she wanted to remain employed but that she wanted to continue as a homebased employee to enable her to remain the primary carer for her mother. Mrs Follows, along with another colleague who wanted to carry on as a homebased employee, was eventually dismissed as redundant, following which she brought claims against Nationwide for unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.
What is discrimination by association?
Under section 13 of the Equality Act 2010 (EqA), the less favourable treatment complained of by the claimant need not be because of their own protected characteristic in order for direct discrimination to be established. Direct discrimination can occur where the reason for the less favourable treatment is the protected characteristic of another person who the claimant is associated with. Conversely, under section 19 EqA, in order to establish indirect discrimination, the claimant would need to demonstrate that the respondent applies a provision, criterion or practice which is discriminatory in relation to the claimant’s protected characteristic.
Following the recent decision in Chez Razpredelenie Bulgaria AD, the European Court of Justice (ECJ) established that the concept of associative discrimination could be extended to indirect discrimination. The ECJ’s ruling now means that a person need not necessarily possess a protected characteristic in order to bring a claim for indirect discrimination, so long as they can show that they suffer a particular disadvantage alongside a disadvantaged group.