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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.
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.
In Follows, the employment tribunal upheld the claims for unfair dismissal and indirect associative discrimination on the grounds of Mrs Follows’ mother’s disability, and indirect sex discrimination.
Regarding the indirect disability discrimination by association claim, the tribunal considered whether it had jurisdiction to determine such a claim arising from the Chez Razpredelenie case. Ultimately, the tribunal decided that section 19 EqA had to be read in a manner consistent with the judgement in Chez. This meant that the reference to a “relevant protected characteristic of the claimant’s” has to be read so as to apply to employees who are associated with a person with a relevant characteristic.
Mrs Follows relied upon the requirement that Senior Lending Managers could no longer work at home on a full-time basis as Nationwide’s provision for the purposes of her section 19 claim. The tribunal accepted that carers for disabled people are less likely to be able to satisfy a requirement to be office-based than those individuals who were not carers. Accordingly, the requirement to no longer work at home put Mrs Follows at a substantial disadvantage because of her association as a carer with her mother’s disability.
The tribunal went on to look at whether Nationwide’s provision was justified on the basis that it was a proportionate means of achieving their legitimate aim of providing effective on-site managerial supervision. The tribunal found this itself contained a discriminatory element and, as such, could not amount to a legitimate aim. In any event, the tribunal considered that even if this was a legitimate aim, by selecting Mrs Follows for redundancy and dismissing her, Nationwide had not acted proportionately. The tribunal considered that Nationwide had failed to discuss alternatives with Mrs Follows, had not provided evidence on which the decision to require office working was based and had failed to take into account Mrs Follow’s views that she would be able to continue to work from home effectively.
Whilst the decision in Follows is not binding on other tribunals, it provides a helpful illustration of how the tribunal considered the Chez judgement.
There are concerns following the Chez and Follows judgements that the protection offered by section 19 EqA may have been exponentially widened. However, employers should note that the Follows decision was limited on its facts to a situation where the relevant provision gave rise to a group disadvantage for carers of disabled people based on their association with the protected characteristic of the person being cared for. It is also worth noting that the Court of Appeal and/or Supreme Court may depart from decisions from the ECJ when it appears right to do so. The principle established in Chez and followed in Follows may well be departed from in due course.
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