Does indirect discrimination law extend to cover disadvantage to a group defined by association with individuals with a protected characteristic?
Mrs J Follows v Nationwide Building Society [2201937/2018V]
What is discrimination by association?
Discrimination by association refers to a situation where an individual is discriminated against based on a protected characteristic held by another person. An example of this is if an employee is treated unfavourably based on the fact that he or she has to care for a disabled dependent.
What is indirect discrimination?
Indirect discrimination is defined in section 19 of the Equality Act 2010 (the "Act") and arises where an employer applies a provision, criterion or practice ("PCP") to everyone, but the application of the PCP in question puts, or would put, a group of people with a shared protected characteristic at a particular disadvantage. The individual must also show that the PCP puts, or would put, them at such a disadvantage.
What is the position on discrimination by association in the United Kingdom?
The current position in the UK is that discrimination by association is only expressly prohibited in the Act in relation to direct discrimination and harassment. This is because the Act does not expressly require these types of discrimination to be based on a protected characteristic belonging to the person bringing the claim. Instead, it only requires the treatment to be because of, or related to, a protected characteristic.
In contrast, section 19 of the Act expressly limits the application of indirect discrimination only to those who have the relevant protected characteristic themselves and therefore are put, or would be put, at such a disadvantage by the PCP in question.
Prior to the case of Follows v Nationwide Building Society, this issue was considered by the European Court of Justice in Chez Razpredelenie Bulgaria AD v Komisia Za Zashtita Ot Diskriminatsia  IRLR 746 ("Chez"). The case of Chez was a direct, not indirect, discrimination claim. However, the Court held that the concept of associative discrimination could, in principle, be extended to indirect discrimination even if this meant dis-applying UK legislation.
This is significant because direct discrimination claims are notoriously more difficult to bring than indirect discrimination claims. As such, if employees have the ability to bring claims of indirect discrimination by association, it provides them with additional protection.
What were the background facts in Follows v Nationwide Building Society?
The Claimant was employed by the Respondent from 1 December 2011, most recently as a Senior Lending Manager ("SLM") in the Commercial Lending Team. Her principal place of work was her home address, and this was confirmed by her contract of employment, subject to a requirement for her to attend the office for meetings and other locations depending on the needs of the business.
Throughout her employment, the Claimant was a primary carer for her elderly and disabled mother.
In October 2017, the Respondent undertook a redundancy exercise to reduce the number of employees in the Commercial Lending Team. This restructure also included a decision that all SLMs would need to be based in the office to undertake their role effectively.
The Claimant objected to this decision and was ultimately informed that her role was redundant with effect from 15 January 2018. On 20 January 2018, the Claimant submitted a grievance stating that she had been unfairly treated and selected for redundancy. The appeal was rejected, one of the reasons being that she did not raise a counter-proposal to challenge the decision, and she did not provide any suggestions as to how a home-based SLM could provide the required level of support to more junior staff.
The Claimant subsequently brought proceedings against the Respondent, including for indirect (associative) discrimination on grounds of disability.
What did the Employment Tribunal decide?
The Employment Tribunal considered whether, in the light of Chez, the Claimant could succeed with a claim for indirect discrimination by association.
It was concluded that section 19 of the Act must be read in a manner consistent with Chez and, therefore, that it must be read so as to apply to employees who are associated with a person with a relevant characteristic, not just those who have the protected characteristic themselves.
The Claimant was ultimately successful with her claim for indirect (associative) discrimination on the grounds of disability because of the PCP that SLMs could no longer work at home on a full-time basis put her at a substantial disadvantage because of her association with her mother’s disability as her principal carer. The Employment Tribunal accepted as a general proposition and as a self-evident fact that carers for disabled people are less likely than non-carers to be able to satisfy a requirement to be office-based, because of their care commitments.
What can employers take from this?
Whilst, as a first instance decision, which does not bind other Employment Tribunals, this judgment should be treated with caution, it is the first time Chez has been applied in England.
At the very least, the decision further supports that indirect discrimination law has been extended to cover disadvantage to a group defined by association with individuals with a protected characteristic. Whilst many employers, following Chez, will have already been advised to be mindful of indirect (associative) discrimination, we would now encourage employers, in the light of Follows, to act with caution and presume that this judgment reflects the current position in English law, unless and until the Employment Tribunal indicates otherwise.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.