can a non-disabled person bring a claim for indirect disability discrimination?

can a non-disabled person bring a claim for indirect disability discrimination?

Yes, held the Employment Tribunal in Follows v Nationwide Building Society.

Mrs Follows was employed as a senior lending manager (SLM) at Nationwide Building Society. Her contract of employment noted her as a ‘homeworker’, although she was required to attend the office for meetings (which she did two to three days a week). The principal reason that Mrs Follows needed to work from home was because she was a carer for her elderly disabled mother.

In 2017, Nationwide made the decision to reduce the number of SLMs and also decided that all SLMs must be based in the office for, amongst other reasons, to provide “accessible and visible managers”. Ms Follows was informed that her role was at risk of redundancy as a homeworker and she was eventually dismissed on grounds of redundancy.

Mrs Follows brought claims of unfair dismissal, direct associative discrimination on grounds of disability, indirect associative discrimination on grounds of disability, indirect discrimination on grounds of sex and indirect discrimination on grounds of age.

In respect of the indirect associative disability discrimination, Ms Follows argued that Nationwide had applied a provision that SMLs could no longer work at home on a full-time basis and the application of this provision put carers at a particular disadvantage because they are less likely to be able to be office based than non-carers. This particular provision put Mrs Follows at a disadvantage because she is the primary carer for her disabled mother and there was no justification for the provision.

Nationwide argued that the tribunal did not have jurisdiction to hear the claim of indirect associative discrimination. The tribunal disagreed, applying Chez Razpredelenie Bulgaria AD v Komisia Za Zashtita OT Diskriminatsia Case C-480/15 ECJ .  The tribunal stated that the Directive is “intended to benefit those who are associated with a protected characteristic who suffer less favourable treatment or a particular disadvantage”. Considering the provision, the Tribunal agreed with Ms Follows that it placed her at a substantial disadvantage and that Nationwide had not taken reasonable steps to avoid the disadvantage. This is the first time that a Tribunal has upheld a claim for indirect associative discrimination in England & Wales (but caution must be applied, as this a first instance decision and so is not binding).

Employers should be aware of the risks of requiring employees be office based, particularly after lockdown and where employees have caring responsibilities. In this instance the requirement to have visible managers was held not to be a legitimate reason to require all managers to be office based. Employers should ensure they have clear policies in place for carers and should ensure that these employees are not treated less favourably than employees who are not carers.

You can read the full judgment here.

This update was written by Joanne Sinclair, Solicitor.