A recent Employment Tribunal (ET) case of Fallows v Nationwide Building Society has held that protection under associative discrimination, where the victim of the discrimination has no protected characteristic personally but instead is associated with someone with the relevant characteristic, can also extend into indirect discrimination. This case directly applies the European Courts of Justice decision of Chez Razpredelenie Bulgaria into UK Employment law.
Mrs Fallows was employed as a Senior Lending Manager (SLM) under a home working contract but she attended the office two to three days a week. She needed to be employed under a home working contract as she had caring responsibilities for her disabled mother.
Nationwide commenced a restructuring procedure where they needed all SLMs to be office workers to enable better staff supervision. As a consequence of this decision, Mrs Fallows was put at risk of redundancy and a consultation process was commenced.
As part of the consultation process, there were more volunteers for redundancy than Nationwide needed. Mrs Fallows did not volunteer for redundancy. During the consultation, Mrs Fallows requested to keep her current working arrangement and agreed to continue attending the office for a few days a week but she was still made redundant.
Mrs Follows brought claims of unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.
Mrs Fallows claims failed apart from those for unfair dismissal and indirect associative discrimination on the grounds of disability.
Using the case of Chez, the ET noted that the discrimination directive intended to benefit those associated with a protected characteristic who are subject to “less favourable treatment or a particular disadvantage”. Mrs Fallows had caring responsibilities for her disabled mother which meant that she could not be a purely office-based worker. The new measures being implemented by Nationwide meant that Mrs Fallows was put at a disadvantage through her association with her mother’s disability and therefore the decision to make her redundant was also discriminatory.
The ET also held that Nationwide had failed to take reasonable steps to avoid Mrs Fallows being made redundant, for example they did not consider Mrs Fallows’ current working pattern and her assertion that this would be suitable to continue, they also failed to consider any alternatives to redundancy. The requirement for all SLMs to be on-site was discriminatory as a general provision and therefore could not amount to a legitimate aim for the purposes of indirect discrimination.
This case has provided a good indication of how the decision in Chez is implemented within UK employment law and should be borne in mind when making decisions around employees who are associated to someone with a protected characteristic. For advice on specific scenarios, please contact one of the Employment team at Stone King.