Whilst employment tribunal decisions are not binding on other employment tribunals, it is worth noting the reasoning followed by the employment tribunal in the recent decision of Follows v Nationwide Building Society which has for the first time in UK law upheld a claim of indirect associative discrimination. Alan Lewis finds this case particularly relevant for employers trying to encourage workers back to the office
Before the decision in Follows, UK law recognised that claims could be made for direct associative discrimination, but not indirect associative discrimination.
Under section 13 of the Equality Act 2010, dealing with direct discrimination, there is no requirement for the less favourable treatment to be because of a protected characteristic of the person who receives that treatment. The less favourable treatment can therefore be because of the characteristic of another person, such as somebody who the claimant associates with. An example is the case of Weathersfield v Sargent where an employee resigned because they did not want to comply with an instruction not to hire vehicles to Black or Asian customers. The Court of Appeal upheld the employment tribunal’s finding that the claimant (who was neither Black nor Asian) had been subjected to less favourable treatments on racial grounds.
By way of contrast, to establish indirect discrimination, section 19 of the Equality Act 2010 requires the claimant themselves to have the protected characteristic as well as suffering the less favourable treatment. Specifically, subsection 19 (1) says, “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”
The EU Directives that the Equality Act implemented into UK law do not require the claimant to have the protected characteristic. The European Court of Justice (ECJ) has decided in Chez Razpredelenie Bulgaria AD v Komisia Za Zashtita OT Diskriminatsia that associative discrimination could in principle extend to indirect discrimination. That case concerned race discrimination and the ECJ decided that the indirect discrimination provisions of the Race Directive applied regardless of the ethnic origin of the person who suffered the less favourable treatment.
Because the definition of indirect discrimination the relevant Directives is almost identical to the definition used in the Race Directive, it means that under European law the decision of the ECJ in Chez is not limited to indirect race discrimination claims. It follows that a claimant does not have to have a protected characteristic in order to bring a claim for indirect discrimination. What they have to show is that they suffered a particular disadvantage in a similar way that a disadvantaged group did.
In the Follows case, the employee worked for the Nationwide Building Society as a senior lending manager. The Nationwide dismissed her on redundancy grounds. During her seven years of employment, Mrs Follows was employed as a homeworker. The reason she worked at home was because she had to care for her disabled mother. Her employer knew that Mrs Follows needed to work from home to care for her mother and it knew that her mother was disabled within the definition of the Equality Act. Even though Mrs Follows was based at home, she did attend the office on a couple of days each week.
Nationwide took a decision to reduce the number of senior lending managers and required all those who survived the redundancy process to be office based, because of staff supervision reasons and due to a change and the nature of the work. Throughout the redundancy consultation process Mrs Follows made it clear that she wished to keep her existing arrangements of working from home and attending the office a couple of days each week. Nevertheless, Nationwide dismissed her on redundancy grounds. Another employee, Mr Gregory, who was not disabled and was not a carer, also worked on a homeworker contract and he was treated in the same way as Mrs Follows and was dismissed.
Whilst Mrs Fellows’ claim before the employment tribunal for direct associative discrimination failed, because the correct comparator, Mr Gregory was treated in the same way, her claim for indirect associative discrimination succeeded. The tribunal decided that section 19 of the Equality Act must be read in a manner consistent with the ECJ’s judgement in Chez and therefore the reference to a “relevant protected characteristic of B’s” must be read so that it applies to employees who are associated with a person who has a relevant characteristic. The tribunal found that Nationwide had not taken reasonable steps to avoid the disadvantage.
This decision is going to present employers with challenges, particularly where they are trying to get all staff to be office-based and some have caring responsibilities.
After the Brexit transition period, UK courts and tribunals will have to continue to interpret UK legislation in line with EU law, including Chez, save for the Supreme Court and the Court of Appeal which can depart from EU case law where it appears right to do so. Only time will tell whether or not those higher courts will follow the decision in Chez when faced with issues of indirect associative discrimination.
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