Requirement for Office Working was Associative Indirect Discrimination

In Follows v Nationwide Building Society an Employment Tribunal has upheld a claim of indirect associative discrimination on the grounds of disability.

Background

The Claimant was employed on a homeworker contract but tended to go into the office two or three days per week. The Claimant’s main reason for homeworking was because she was the primary carer for her disabled mother.

During a redundancy process, Nationwide required that all employees doing the Claimant’s job needed to be office based due to the need for enhanced supervision of both themselves and more junior members of staff. The Claimant was selected for redundancy and was subsequently made redundant.

The Claimant brought various claims including indirect associative discrimination in relation to her mother’s disability.

Judgment

The Employment Tribunal found that the new provision requiring employees in the Claimant’s role to be office based put the Claimant at a substantial disadvantage due to her association with her disabled mother and so found that this new requirement was indirect associative discrimination.

The Employment Tribunal also found that the employer (who were aware of the Claimant’s circumstances) had not discussed potential alternatives and had not taken all reasonable steps to reduce or avoid the disadvantage.

What’s Next

This is only a first instance decision and therefore does not set a precedent.

However, when considering the implementation of new policies, employers should have regard to the potential impact these new measures could have on their staff and whether there could be any discrimination by association, being mindful of the personal circumstances of their employees. This is also very relevant as employers ask employees to return to the office as Covid restrictions loosen.

Any redundancy consultation exercise should be a genuine consultation with the employee to enable all issues to be explored.

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