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Discrimination by association and hybrid working

Overview

Discrimination by association occurs where an employee is discriminated against, not because of a protected characteristic they have, but because of a characteristic of someone they associate with, for example a disabled spouse or child. This case shows how far the protection can potentially extend.

The employee in this case was a senior lending manager at a building society. She was employed on a homeworker contract and worked primarily from home to allow her to care for her disabled mother. However, she regularly attended the office two to three days per week. Another male colleague was also employed on a homeworker contract but was not a carer nor himself disabled. The employer decided to reduce the number of senior lending managers and to require the role to be office-based fulltime. Although there were enough volunteers for redundancy to avoid compulsory redundancies, the employer convinced some of the volunteers to stay and instead dismissed the two homeworkers. The employee brought claims for, among other things, direct and indirect disability discrimination by association based on being a carer for her disabled mother.

The Employment Tribunal rejected the direct discrimination claim, as the employee was dismissed not for her caring responsibilities but because she was a homeworker. However, the Tribunal found that the redundancy dismissal constituted unlawful indirect disability discrimination by association. The employer's requirement that senior lending managers be office-based indirectly discriminated against the employee as a carer. Further, the office-based requirement was not justified. The employer argued that it was necessary to provide effective on-site managerial supervision and support to junior staff. However, the employer failed to take account of the employee's history of excellent feedback on supervision, and also failed to consider less discriminatory ways of achieving the same result, such as having the employee based at home but coming into the office two or three days a week, as she had done previously. The employee was therefore discriminated against, not because of any disability she had but because of her mother's disability.

FOLLOWS V NATIONWIDE BUILDING SOCIETY

This case highlights the dangers of employers imposing a requirement for staff to be completely office-based without considering the individual circumstances of employees. Such a requirement is likely to discriminate indirectly against women, who are more likely to have caring responsibilities, and it may also lead to indirect discrimination by association for employees who care for disabled relatives. Indirect discrimination can, in some cases, be justified. However, the employer would need to show that it has a very good reason for insisting on office-based working and that it has considered all the alternatives, such as hybrid working arrangements. An employer could insist on a role being office-based if remote or hybrid arrangements are unworkable, but it would need to have tested this assumption and ideally have evidence to back it up. This is particularly challenging for many employers given the widespread pandemic-related working from home.

It was previously assumed that the concept of discrimination by association only applies to direct discrimination and harassment. This case extends it to indirect discrimination as well. As an Employment Tribunal ruling, the decision is not binding but it is based on European case law which remains applicable in the UK following Brexit. It remains to be seen whether the ruling will be appealed and whether a similar approach will be taken by Tribunals in future.