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Indirect (Associative) Disability Discrimination – What Employers need to know

Updated: Feb 1


Under the Equality Act 2010, an employee can bring a claim of direct disability discrimination if they have been treated less favourably because of the disability of someone with whom they are associated.


However, the question of whether an employee can be indirectly discriminated against for the same reason hasn’t been tested in the UK courts and tribunals – until now. A recent tribunal case has examined a claim and ruled in the employee’s favour.


What happened?


The case was that of Mrs J Follows v Nationwide Building Society. Mrs Follows was a Senior Lending Manager (SLM). Because she cared for her disabled mother, a fact of which her employer was aware, she was employed on a homeworker contract but she did attend the office two or three days a week.


Mrs Follows’ work record was good throughout her employment. She had high ratings and

appraisals, praised for her “…relentless focus on optimising the development of the individuals on the team…she forms strong relationships with individual team members … she is a strong coach…often being specifically sought out for the counsel that she provides … she is adept at using adversity to generate positive outcomes...this sets her apart from her peers …”.


In 2017, Nationwide decided to reduce the number of SLM positions and those who remained would be office-based from that point forward. Their reason for this was that a work study had shown that there was a great need for on-site staff supervision.


Nationwide informed Mrs Follows that she was at risk of redundancy and began a consultation, as they were required to do under employment law. During the consultation process, Mrs Follows indicated that she wanted to continue in post, feeling that things could continue as they were. Nationwide actually had more volunteers for redundancy than it needed, but nevertheless, the decision was made to make Mrs Follows redundant.


The tribunal case


She then brought five claims against Nationwide:


1. Unfair dismissal

2. Direct (associative) discrimination on ground of disability

3. Indirect (associative) discrimination on grounds of disability

4. Indirect discrimination on grounds of sex

5. Indirect discrimination on grounds of age


The tribunal ruled that claims 2 and 5 failed. However, Mrs Follows was successful with the remainder of her claims. The comments of the tribunal make interesting reading for employers:


Indirect discrimination on grounds of sex


For claim 4, that of indirect sex discrimination, the tribunal noted that statistics showed “more women than men are primarily responsible for caring responsibilities at home for elderly relatives” and that carers are often at a disadvantage in obtaining and keeping employment.


They heard that Nationwide had not taken reasonable steps to avoid this disadvantage and that the decision makers in the redundancy process were aware that Mrs Follows was the primary carer for her disabled mother. Since Nationwide had not provided a legitimate aim, their actions were not a proportionate means of achieving that legitimate aim and the claim of indirect sex discrimination therefore succeeded.


Indirect (associative) discrimination on grounds of disability


For claim 3, that of Indirect Associative Disability Discrimination the tribunal found that Nationwide had a policy that all SLMs should be office-based. In evidence, Nationwide’s witness accepted that it was “better” rather than “essential” to have office-based SLMs.


The tribunal concluded that this was a subjective view, not based on rational judgment or on any reasonable assessment of supervisory requirements once redundancies were achieved.


It also failed to consider the views raised by Mrs Follows that her role could be undertaken from home, or her history of excellent supervisory work. The tribunal concluded that there were other non-discriminatory ways of achieving the aim of high standards of supervision including Mrs Follows working from home and attending the office 3 days a week, as she had been doing.


The tribunal then turned its attention to Nationwide’s assertion that Section 19 of the Equality Act required the person suffering unfavourable treatment to also possess the relevant characteristic. The tribunal referred to a case ruled on by the European Court of Justice (ECJ) in 2015, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, where the ECJ said that a person can bring a claim for indirect discrimination, even if they don’t have the protected characteristic but suffer unfavourable treatment alongside those with the protected characteristic.


As the tribunal said:


“The ECJ stated “The principle of equal treatment in the Equal Treatment Directive 2006/54/EC is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds”. The words ‘less favourable treatment’ refer to what in the Equality Act is termed direct discrimination; the wording ‘a particular disadvantage’, indirect discrimination.


“CHEZ was a direct, not an indirect, discrimination claim. However, the ECJ ruled that this practice could constitute indirect discrimination.


“The reference to both 'less favourable treatment' (found in the definition of direct discrimination) and 'particular disadvantage' (found in the definition of indirect discrimination) suggests that 'associative indirect discrimination' is, as a matter of law, possible.”


The tribunal ruled that the Equality Act’s wording on disability discrimination “must be read in a manner consistent with this judgment [CHEZ]” so that it applies to employees who are associated with a person with a disability.


Relevance


So far, this case has only been ruled on by the Employment Tribunal, so it is not a binding precedent, but it is likely to be referenced by claimants and their representatives in future claims.


With the change in working patterns brought on by the COVID pandemic, and the ongoing issue of an ageing population, employers could see many more such claims from employees with caring responsibilities both in terms of redundancies as in the Follows case and requests for flexible working.


As a general takeaway, for indirect discrimination claims, an employer must show that measures taken were a proportionate means of achieving a legitimate aim. To be proportionate, a measure must be both appropriate and reasonably necessary based on rational judgement (with consideration of whether any non-discriminatory alternatives are available) and not formed on a subjective view of what the employer believes would be “better”.