Returning to work: a requirement to work full time from the office may be discriminatory against those with caring responsibilities.
In the recent Employment Tribunal case of Fallows v Nationwide, an employee who was a senior manager had primary caring responsibilities for her disabled mother. Due to these caring responsibilities, the employee previously attended the office two or three days per week and worked the remainder of her time at home.
The employer introduced a new policy requiring all managers to attend the office five days’ a week. The company’s aim in introducing this policy was to provide on-site supervision. Ms Fallows could not comply with this request because of her caring responsibilities and was dismissed.
The Employment Tribunal found that the employee was indirectly discriminated against on the grounds of disability, despite not having a disability herself. This is associative discrimination, which applies when someone is treated unfairly because someone they are associated with has a protected characteristic under the Equality Act 2010.
As a general principle, the Tribunal accepted that those with caring responsibilities are less likely to be able to comply with a 5-day in-office working requirement. The tribunal did not accept that Nationwide’s aim of providing on-site supervision was legitimate. It found that the aim itself was discriminatory and in any event, the employee’s dismissal was not a proportionate means of achieving that aim, as flexible working had operated successfully previously.
This is the first time the concept of associative discrimination has been held to apply to indirect discrimination in the UK. However, it is worth noting that this is a first instance employment tribunal decision and therefore this is not legally binding.
What this means for employers
The concept of associative discrimination is not a new one, but as mentioned above, this is the first time a UK court has applied it in an indirect discrimination context. To the extent no higher court departs from this principle (and other Tribunals follow it) it means employees will be able to bring indirect discrimination claims relying on the protected characteristic of those they are associated with, even if they don’t themselves possess this characteristic.
This case is also yet another reminder for employers that they may face difficulties refusing requests for flexible working in circumstances where arrangements have previously been shown to work. This is particularly relevant in the context of requests to work from home, given employees are likely to have evidence they have successfully done this for the last 18 months throughout the pandemic. Employers should review their policies on home working and flexible working, and consider carefully what their business aims are, what they are seeking to achieve, and whether these can be objectively justified. Employers should be mindful of the impact of changing working requirements on those with protected characteristics, and those with caring responsibilities.
For more information, please contact a member of the Employment Team.