Employers may not have heard of a recent case in the Employment Tribunal ‘Follows vs Nationwide Building Society’ in which an Employment Tribunal unusually upheld a claim of indirect associative discrimination on the grounds of disability. It is important that this case is on the radar for employers albeit, as we cover at the end of this article, the decision may yet be over-ruled.
Mrs Follows was made redundant from Nationwide Building Society. She had a ‘homeworker’s contract’, so her work was mainly at home, although she also attended the office. She needed this because she cared for her disabled mother. Nationwide began a restructuring and redundancy process which required for all such employees to work from the office and following this process Mrs Follows was made redundant. Mrs Follows brought claims for direct and indirect associative discrimination on the grounds of disability.
‘Associative Discrimination’ is when a person is subjected to less favourable treatment because someone they know or are associated with possess a protected characteristic under the Equality Act, 2010. To give an example, an employee being passed over for a pay-rise because they have a friend who is Asian would be associative discrimination on the grounds of race.
This avenue has always been difficult to pursue for employees because under the Equality Act, the person who is subjected to the less-favourable treatment must possess the protective characteristic. It was generally thought therefore that associative discrimination cases were limited to cases of direct discrimination only. The Employment Tribunal however in this case, reasoned that Section 19 of the Equality Act (which deals with indirect discrimination) should be read in a way that is consistent with EU Law, which would mean that the protection should be extended to employees who are associated with someone who possesses a protected characteristic, even if they themselves did not have that protected characteristic.
This is a first instance decision of an Employment Tribunal, so it is not binding, but is a reminder that presently Tribunals are still required to interpret legislation in line with EU Law and accordingly such claims can succeed. As employers return employees from furlough into different working patterns or back into the office, employers should be aware of this case. Employers should keep an eye on future developments, to see whether the Judge’s reasoning in Follows is followed (no pun intended) or whether a subsequent decision of a higher court leaves it as a legal footnote.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Legal Ltd) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.