An employment tribunal recently examined the impact of a decision to require a homeworker, who cared for her disabled mother, to work in the office full time. Audrey Williams looks at some lessons for HR.
With many businesses encouraging staff to return to work, the recent case of Follows v Nationwide Building Society is a useful reminder about the care needed when managing the return to the workplace, flexible and hybrid working arrangements, and changes to work patterns.
The judgment was handed down by an employment tribunal but it may also be heard by the Employment Appeal Tribunal. The decision by the employment tribunal still illustrates the increased legal risks, which go further than indirect sex discrimination claims from disadvantaged female workers that have become familiar to organisations.
In this case, the claimant was a carer for her disabled mother and brought disability discrimination claims, including one of indirect disability discrimination despite not being a disabled person herself. The tribunal upheld this claim.
The case
Ms Follows was employed on a homeworking contract as a senior lending manager (SLM) although she did attend the office for meetings and a few days each week. Her role was declared redundant when Nationwide decided that all SLMs should be based in the office rather than homeworkers due to a gradual reduction in commercial real estate lending. Nationwide decided that with less focus on new business and client relationships, the run-down of the lending book was more process driven which needed greater staff supervision by SLMs. They also had feedback from junior staff dissatisfied with the level of supervision.
Indirect discrimination
Ms Follows wanted to retain her homeworking contract due to her caring responsibilities. When she refused to agree to the full-time office-based role, she was made redundant.
The employment tribunal sided with Ms Follows and concluded that she was subjected to indirect disability discrimination, despite the fact it was her mother who was disabled and not Ms Follows herself. The case shows that indirect disability discrimination provides much wider legal protection than might at first be assumed.
Associative discrimination
The case echoes an earlier case of Coleman v Attridge Law but extends the protection for those with caring responsibilities where an employee is caring for a disabled person. Ms Coleman’s claim was that she was subjected to direct disability discrimination because of her son’s disability. The Equality Act 2010 protects against less favourable treatment (i.e. direct discrimination) because of disability, without the claimant herself needing to be disabled.
Be cautious when imposing or changing working arrangements of this nature, whether that is working hours, having to be office based, or changing shift and working patterns”
The position is less clear with indirect discrimination but Follows suggests the same wider protection applies and associative disadvantage can be relied upon. The Court of Justice of the European Union had decided previously (in a goods and services discrimination case) that an electricity supplier which fixed its electricity meters six metres high on their electricity poles in a predominantly Roma district (when usually they were placed at 1.7 metres) adopted a practice which disadvantaged the Roma group and also amounted to discrimination against a non-Roma resident.
Applying this principle, the judge in Follows concluded the requirement that SLMs could no longer work at home on a full-time basis disadvantaged Ms Follows. This placed her at a substantial disadvantage in relation to the protected characteristic of disability. The judge also rejected Nationwide’s arguments seeking to justify the office-based requirement.
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Therefore, employers will need to take particular care when dealing with flexible working requests, or facing resistance to returning to the office, from individuals who are carers.
Take aways for HR
- Be cautious when imposing or changing working arrangements of this nature, whether that is working hours, having to be office based, or changing shift and working patterns.
- The reason for the request or the objections to the work pattern must be assessed carefully.
- Caring responsibilities bring particular risks, not just childcare reasons but carers of those with disabilities or elder care (given age discrimination laws).
- Employers should also ensure the organisation itself is flexible and not dogmatic: can exceptions be made for individuals who face difficulties? Applying a strict rule, without exceptions will be harder to justify.
- Consultation and discussion are important, as is seeking compromise and exploring options to accommodate difficulties.
- Often, agreeing to monitor the arrangements for a trial period can provide evidence of concerns, or prove or disprove whether the arrangements work.
An employer will always have to work hard justifying its position. Indirect discrimination challenges can be defended but the organisation must demonstrate that it has legitimate aims and that it struck the right balance between the business requirements with those of the employee where there is a discriminatory impact. Proportionality is required, which includes demonstrating that it considered alternatives and explored solutions. Ultimately an employer will need to show the requirement is a proportionate means of achieving the aims.
