Indirect associative discrimination
Direct discrimination can occur when the reason for the less favourable treatment is the protected characteristic of someone with whom the employee associates, for example a parent’s association with their disabled child. Indirect discrimination is different. In order to establish indirect discrimination, section 19 of the Equality Act 2010 says that an employee must suffer the disadvantage and have the protected characteristic in question. In a case called Chez Razpredelenie Bulgaria, the ECJ said that the concept of associative discrimination could extend to indirect race discrimination. As the definition of indirect discrimination is almost identical in the Equal Treatment Directive as the Race Directive, the question has arisen about whether indirect associative discrimination applies in relation to other protected characteristics. An employment tribunal has now looked at this issue in a case involving the treatment of an employee with caring responsibilities for her disabled mother.
In Follows v Nationwide Building Society, the employee was a Senior Lending Manager (SLM) who had a homeworking contract. She worked from home because she was the main carer for her disabled mother, something management were aware. Despite being on a homeworking contract, she attended the office 2 or 3 days a week. She had always scored highly in her appraisals and had a history of excellent supervision of team members. The Bank decided to reduce the number of SLMs from 12 to 8, who would all be office based. The Bank cited a greater need for staff supervision and feedback from junior staff that they were dissatisfied with supervision. The Bank asked for volunteers and received more than enough. Despite this, it asked some of those volunteers to stay and instead dismissed the employee, who didn’t want to leave. Another homeworking employee, Mr Gregory, who was not disabled and not a carer, was also dismissed. The employee brought many claims, including ones for direct and indirect associative discrimination.
The employment tribunal said that the direct associative discrimination claim failed. The right comparator was a homeworking employee who was either not disabled or not associated with a disabled person. Mr Gregory fitted that description but was treated the same as the employee. The reason for the treatment was not the employee’s caring responsibilities, but her homeworking status. However, her claim of indirect associative discrimination succeeded. The tribunal said that the provisions of indirect discrimination should be construed with the Chez case in mind. The relevant policy which was applied to everyone was the requirement that SLMs could no longer work at home on a full-time basis. Carers of disabled people are less likely to be able to meet the requirement to be office based. The requirement put the employee at a substantial disadvantage because of her association with her mother’s disability as her main carer. The Bank knew about her mother’s disability and her caring responsibilities. The Bank hadn’t discussed alternatives with the employee and ignored her protestations that the role could continue on her usual terms. As such they had not taken reasonable steps to avoid the disadvantage. The legitimate aim relied on by the Bank was a need to provide effective onsite supervision and support for junior staff following a reduction in headcount. The tribunal said the need to provide on-site supervision contained a discriminatory element and so could not be a legitimate aim. Even if it were a legitimate aim, the means of achieving it were not proportionate bearing in mind the employee’s excellent history of supervision and her view that it could be done on her own terms. There were other ways to achieve that aim, including maintaining the employee’s existing split site working arrangements.
This case is not binding on other tribunals but shows that the concept of associative discrimination now applies to indirect discrimination. Employers must ensure that employees who care for disabled people are not disadvantaged unless it can be justified. Although ECJ cases are no longer binding following Brexit, Chez was relevant here because tribunals must continue to interpret cases in line with EU law. That said, the Supreme Court and Court of Appeal may choose to depart from EU case law ‘when it appears right to do so’. The current wording of section 19 on indirect discrimination does not include associative discrimination. Watch this space to see if domestic courts close this avenue of claim down or embrace it fully by amending the Equality Act 2010.