UK: Discrimination: Disability associative discrimination
Ms Follows, a senior lending manager (SLM) at Nationwide Building Society, was employed under a homeworking contract. Her place of work was her home address and she was required to attend the office for meetings – she usually attended 2-3 days a week. Nationwide knew she needed to work from home because she was the primary carer for her mother who was disabled under the Equality Act. Nationwide decided to reduce the number of SLMs and began a redundancy exercise. It also decided all SLMs must be based in the office because they needed “accessible and visible managers” to provide “oversight, supervision, advice and guidance”. In 2017, Nationwide informed the homeworkers, including Ms Follows, that their roles were at risk of redundancy because of the requirement to attend the office. At the end of the consultation process, Nationwide dismissed her on the grounds of redundancy.
Ms Follows brought various claims, including for indirect associative disability discrimination – alleging that:
- Nationwide had applied a provision that SLMs could no longer work from home
- Applying that provision put carers of disabled people at a particular disadvantage because they are less likely to be able to be office based than non-carers
- As the primary carer of her disabled mother, the provision put her at that disadvantage
- The provision was not justified
The tribunal concluded that the requirement to attend the office full-time put Ms Follows at a substantial disadvantage because of her association with her mother’s disability as her principal carer. It held that Nationwide had not taken such steps as were reasonable to avoid the disadvantage because they had not discussed alternatives, had not provided evidence on which the decision was based, and had ignored Ms Follows’ view that the role could continue with her existing arrangements – and that Nationwide could not justify the disadvantage suffered by Ms Follows.
The tribunal also found that the provision amounted to indirect sex discrimination as more women than men are primary carers for elderly relatives.
Key Action Points for Human Resources and In-house Counsel
This decision shows that a non-disabled employee may bring a claim for indirect disability discrimination if they suffer a particular disadvantage because of their association with a disabled person – that said, this is a first-instance decision and is not binding on other employment tribunals.
Where employers are requiring their employees to return to the office after home working during the pandemic, they should consider the need for this requirement carefully, and take account of the individual’s own circumstances and any reasons why they do not want to return to the workplace.