What is indirect associative discrimination?

In the case of Follows v Nationwide Building Society 2020, a UK Employment Tribunal for the first time upheld a claim of indirect associative discrimination. This is an important decision which could have implications for employers as to the treatment of their employees who are associated with someone who has a protected characteristic under the Equality Act 2010.  Our Employment Law team today reviews what indirect associative discrimination and considers what the Follows decision means for employers.

What is associative discrimination?

Associative discrimination is when a person is subjected to less favourable treatment because someone they know or are associated with possesses a protected characteristic as defined by the Equality Act 2010. For example, an employee being passed over for promotion because they are close friends with someone who is gay would be associative discrimination based on sexual orientation.

Under the Equality Act 2010, the person claiming to have experienced less favourable treatment does not need to personally possess the relevant protected characteristic for a claim of direct discrimination to be made out. There are several examples of direct associative discrimination in UK case law. One example is the case of EBR Attridge Law v Coleman, where a woman claimed that she was subjected to discriminatory treatment at work because her son was disabled. The Employment Appeal Tribunal held that the current legislation did not preclude her from bringing a direct discrimination claim even though she herself was not disabled.

However, under s19 of the Equality Act, for a claim of indirect discrimination to be made out, the person experiencing the less favourable treatment must personally possess the relevant protected characteristic. This wording seems to limit associative discrimination to cases of direct discrimination only and may be why, until recently, a claim of indirect associative discrimination has not been upheld by a UK court.

The case of Follows v Nationwide

Ms Follows worked for Nationwide Building Society as a senior lending manager (SLM) under a homeworking contract. Her employer was aware that she worked from home so that she could care for her elderly mother, who was disabled under the Equality Act 2010. In 2017, Nationwide decided to reduce the number of SLMs and require the remaining SLMs to work in the office full time. During the redundancy consultation, Ms Follows made it clear that she wanted to keep her current homeworking arrangements and at the end of the redundancy process she was made redundant, despite the fact that a sufficient number of other employees had volunteered for redundancy.

Following an earlier decision of the European Court of Justice, the Employment Tribunal upheld Ms Follows’ claim of indirect associative discrimination related to disability. It reasoned that s19 of the Equality Act 2010 should be read in a way that is consistent with EU case law, meaning the wording should be extended to apply to employees who are associated with a person with a relevant protected characteristic. The tribunal concluded that Nationwide’s policy of requiring SLMs to work at the office put Ms Follows at a substantial disadvantage “because of her association with her mother’s disability as her principle carer.” Nationwide failed to take any steps to alleviate the disadvantage or to consider any alternatives. The company also could not show how its policy of requiring employees to work full-time from the office was necessary to achieve a legitimate aim.

What does this mean for employers?

This is a first instance Employment Tribunal decision and is therefore not binding on future tribunals. However, this case reminds employers that tribunals are still required to interpret legislation in line with EU law. A Court of Appeal or Supreme Court may decide to depart from EU legislation, but until then employers should be alive to the possibility that employees may succeed in bringing a claim for indirect associative discrimination.

This case may be especially relevant at a time when many employers are trying to bring employees back into the office and arrange new working patterns. Employers should carefully examine their policies and consider how different groups of employees are affected. If one group of employees is placed at a greater disadvantage, employers must consider whether their policy can be objectively justified or if there is another way to achieve their legitimate business aim.

If you have questions about associative discrimination and the Equality Act, contact our Employment Law Team today on on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.