Office-working requirement discriminated against carer

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Posted on 13 Oct 2021

Office-working requirement discriminated against carer

Tribunal rules employee who cared for her disabled mother suffered indirect associative discrimination

An employment tribunal has ruled that an employer’s requirement for employees to be office-based indirectly discriminated against an employee who cared for her disabled mother. The tribunal ruled that it is possible to bring a claim of indirect associative discrimination under the Equality Act 2010.

Mrs Follows worked as a Senior Lending Manager (SLM) on a homeworker contract. Although her principal place of work was her home, she attended the office two or three days each week. She had a homeworker contract because she was a carer for her disabled mother.

Nationwide decided to reduce the number of SLMs and make redundancies. It also decided that all SLMs should be office-based due to the need for greater supervision of junior staff. Mrs Follows wanted to keep her existing working arrangements but Nationwide dismissed her by reason of redundancy.  

Mrs Follows brought employment tribunal claims, including for direct and indirect disability discrimination by association. She argued that Nationwide was discriminating against her due to her mother’s disability.  

Unlike for direct discrimination, the indirect discrimination provisions in the Equality Act 2010 require the victim to possess the relevant protected characteristic, in this case disability. However, the employment tribunal ruled that the Equality Act 2010 must be read as prohibiting associative indirect discrimination in order to comply with EU case law.

The tribunal went on to rule that Nationwide had indirectly discriminated against Mrs Follows due to her mother’s disability. It accepted that carers for disabled people are less likely to be able to comply with a requirement to be office-based than non-carers and found that the requirement to be office-based substantially disadvantaged Mrs Follows.

The tribunal considered that the requirement was not justified. Nationwide’s aim of providing on-site supervision was not legitimate, as the need to be on site was itself discriminatory. However, even if Nationwide’s aim had been legitimate, dismissing Mrs Follows was not a proportionate means of achieving it. Mrs Follows had a documented record of excellent supervision of her team and so the existing arrangements could have worked and were less discriminatory. 

Mrs Follows’ direct associative discrimination claim failed, with the tribunal ruling that she had been made redundant because she was employed on a homeworker contract, not because she cared for her disabled mother.  

What does this mean for employers?

This is an employment tribunal decision and so other employment tribunals do not have to follow it.

However, employers need to be aware that working practices may disadvantage not just those with a protected characteristic, but also those who are associated with them. This is particularly relevant at the moment in the context of employers requiring employees to return to the office. Where an employee has Covid-related concerns about the impact of a required office return on a disabled relative they could argue that they are a victim of indirect associative discrimination. Employers will need to justify the requirement by reference to a legitimate aim and show that the requirement is a proportionate means of achieving their aim.  

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