Employee suffered indirect associative discrimination
An employment tribunal has considered, for the first time, whether indirect discrimination can occur even when the employee to whom the provision, criterion or practice has been applied does not have the relevant characteristic, where their associate does and this has the result of disadvantaging the employee.
Under the Equality Act, section 19, (1), indirect discrimination is defined as:
“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”
This is in contrast to the law on direct discrimination, which does not explicitly require the individual bringing the claim to hold the protected characteristic.
In Follows v Nationwide Building Society, Follows worked as a senior lending manager, based from home due to their caring responsibilities for their disabled mother. They did this for 7 years, attending the office a couple of days a week.
When the employer took the decision to reduce the number of senior lending managers, they decided all of those who were left must be based from the office, due to a change in the nature of the work and the need for staff supervision.
During consultation for redundancy, Follows made it clear they could not do this, for the reasons above. They, along with a colleague who was also home based (and wanted to remain so), were eventually dismissed as redundant.
As the interpretation of the law by employment tribunals and the Employment Appeal Tribunal remains subject to EU law (including case law), the court had to read section 19 of the Equality Act in line with the EU requirements, reading into it therefore that “relevant characteristic of B’s” could also be that of an associate of B’s. This therefore opened up the possibility of indirect associative discrimination, and this claim was successful as it was found reasonable steps had not been taken to avoid a disadvantage being applied to Follows.
Note for employers
As an employment tribunal decision, it should be remembered that this is not going to be binding on other courts. Surprisingly, despite the law in this area being in place for quite some time, this is the first time that a claim for indirect associative discrimination has been upheld. Nevertheless, employers would do well to take heed of this finding, as they take steps to get staff back into the office. Taking steps to manage the return carefully, and discussing individual circumstances with staff to tackle any difficulties they may have in returning, will help employers provide a more robust defence should this claim come their way.