A first instance tribunal decision has ruled that UK law should be read as prohibiting a policy which indirectly discriminates against an employee who cares for a disabled person, for example due to a lack of flexibility over hours or location of work.
Currently, discrimination because of association with a person with a protected characteristic is only expressly prohibited in relation to direct discrimination and harassment (for example, not recruiting or harassing someone because they have a disabled child); indirect discrimination claims can only be brought by a claimant who themselves has the protected characteristic. Despite this, an employment tribunal has now ruled that the Equality Act must be read as prohibiting associative indirect discrimination in order to comply with EU case law. When designing policies employers should consider the potential for disadvantage to individuals associated with someone with a protected characteristic, and should check that the policy is a proportionate means of achieving a legitimate aim. This is likely to be particularly relevant at the moment when employers are considering requiring a return to office-work or hybrid working following homeworking during the pandemic.
In Follows v Nationwide, the employer's decision to require senior managers to be fully office-based put F at a substantial disadvantage – as the principal carer for her disabled mother she had previously only attended the office 2 or 3 days a week and was unable to comply with the new requirement. The European Court of Justice in Chez Razpredelenie Bulgaria (see here) established that the concept of associative discrimination could in principle be extended to indirect discrimination. The tribunal therefore determined that the Equality Act must be read in a manner consistent with Chez to permit an indirect discrimination claim notwithstanding that it was F's mother, rather than F, who was disabled.
The tribunal accepted as a general proposition and as a self-evident fact that carers for disabled people are less likely than non-carers to be able to satisfy a requirement to be office-based, because of their care commitments. It ruled that the employer's aim of providing on-site supervision was not legitimate, as the need to be on site was itself discriminatory. However, even if there had been a legitimate aim, F's dismissal was not a proportionate means of achieving the aim, given that a hybrid arrangement could have worked on the facts. The tribunal was not satisfied that the requirement to be fully office-based corresponded to a real need, nor that it was based on actual evidence or rational judgment.
Although not binding on other tribunals, the decision is noteworthy as the first time Chez has been applied in England. It extends indirect discrimination law to cover disadvantage to a group defined by association with individuals with a protected characteristic. However, it does not touch on whether and in what circumstances protection should also extend to the situation where individuals with a protected characteristic are disadvantaged and the claimant "suffers alongside" those individuals (the scenario that arose in Chez). Of course, following Brexit, it will also be open to the Court of Appeal or Supreme Court to depart from the Chez ruling if the issue comes before them.
Originally Published 28 September, 2021
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