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In the recent case of Follows v Nationwide Building Society, an Employment Tribunal found that the dismissal of a carer employee was discriminatory. Mrs Follows was employed by Nationwide as a Senior Lending Manager and principally worked from home (as her contract permitted) as she was also a carer for her disabled mother. Her management team were aware of her caring responsibilities.
Nationwide decided that all Senior Lending Managers could no longer work from home on a full-time basis due to the need to provide on-site supervision. As Mrs Follows could not comply with this requirement, she was made redundant. The Tribunal accepted that carers of disabled people were less likely to be able to work from the office than non-carers and therefore, Mrs Follows was put to a substantial disadvantage because of her association with her mother’s disability. The Tribunal also found that Nationwide could not objectively justify the requirement for office-based working and therefore upheld a claim for indirect associative discrimination.
This is the first successful case on these grounds and opens up the possibility of other carers being protected from discrimination in similar circumstances.
All employees are protected from discrimination. This prevents employees from being treated unfairly or disadvantaged because of a ‘protected characteristic’. Protected characteristics include disability and age.
While a carer may not have a particular protected characteristic they may be closely linked to an individual who does, a disabled child or an elderly relative, for example. The question is then whether the carer is being discriminated against due to their association with that individual or protected characteristic.
Direct discrimination is where an individual is treated less favourably because of a protected characteristic. In a case where an employee is not given a promotion because they are a carer for their elderly relative, the carer is refused promotion because of their association with that relative whose age is a protected characteristic. The employer may therefore be liable for direct discrimination.
Indirect discrimination is where an employer’s provision, criteria or practice applies to all employees, but it places the particular individual, along with those with whom they share a protected characteristic, at a disadvantage. This is unlawful unless the employer can show that its requirement is a proportionate means of achieving a legitimate aim.
In Follows v Nationwide, the employer’s criteria was that all Senior Lending Managers must be office-based. The Employment Tribunal decided that the Equality Act 2010 must be read such that the individual suffering the disadvantage does not necessarily need to share the protected characteristic. It was Mrs Follow’s mother who was disabled, not Mrs Follows herself but Mrs Follows was successful in her claim because she was associated with someone who was disabled, and the requirement to work from the office put her and other carers at a disadvantage.
Most employees (subject to different eligibility criteria and notice provisions) have the right to request flexible working arrangements or take leave for different types of family or dependent reasons. At differing stages, a carer may therefore need to make a flexible working request to start work later due to ongoing medical appointments or take dependent leave if an emergency occurs. Employers who do not respond to these requests in a fair and lawful way may be liable for associated claims, including claims of discrimination.
If you require any legal advice in relation to your employees and carers within your workforce feel free to contact us using the form below.