An employment tribunal held that a worker caring for her disabled mother could claim indirect disability discrimination when asked to give up home-working. This was even though it was the mother rather than the claimant who was disabled. However being only a tribunal case, it does not set a precedent.
2021, Employment Tribunal. Full decision: www.gov.uk/employment-tribunal-decisions/mrs-j-follows-v-nationwide-building-society-2201937-slash-2018
Facts
The claimant cared for her disabled mother, and was employed under a ‘home working contract’. In a redundancy exercise the employer decided that anyone remaining in the role should not be working from home. Due to her caring responsibilities she wanted to retain her existing contract, where she did in fact come into the office 2-3 days a week. She was dismissed.
Held: the employer was liable for unfair dismissal, indirect disability discrimination, and indirect sex discrimination. (This was a decision by an employment tribunal. It was not an appeal decision, so not a binding precedent.)
Indirect disability discrimination by association
The tribunal held that because of the EU court decision in CHEZ, she could claim indirect disability discrimination even though it was not her who had the disability (known as discrimination by association). The wording of s.19 EqA does not allow this, but the tribunal said that section must be read in a manner consistent with the CHEZ decision.
The requirement to no longer work at home on a full-time basis put the claimant at a substantial disadvantage because of her association with her mother’s disability as her principal carer. This requirement of the employer was not justified on the facts. Her claim for indirect disability discrimination therefore succeeded.
Indirect sex discrimination
Her claim for indirect sex discrimination also succeeded. The tribunal accepted statistical evidence that “more women than men are primarily responsible for caring responsibilities at home for elderly relatives”. The requirement to give up home working therefore put women including the claimant at a particular disadvantage. Again that requirement was not justified, so there was indirect sex discrimination.
My comments
Update: The EqA is to be amended in the light of CHEZ, from 1st January 2024: Retained EU Law Act 2023>Indirect discrimination by association. However the new s.19A to be inserted would still not allow the disability claim in this Follows case, since under s.19A the claimant (here the daughter) must be put at substantively the same disadvantage as those who have the protected characteristic, here disability. It therefore seems probable that an indirect disability discrimination claim on these facts will not succeed in future. Even if allowed by the REUL Act, British courts may be reluctant, where the effect of CHEZ is uncertain, to extend it beyond the regulation which aims to implement it.
Position needs to be confirmed by appeal courts
Whether indirect disability discrimination can be claimed in these circumstances will have to be decided by appeal courts. Previously UK cases and guidance have indicated that only in claims for direct discrimination or harassment may someone other than the claimant have the disability: Discrimination by association. However the EU court decision in CHEZ in 2015 opened up the possibility that at least in some circumstances a person without the relevant protected characteristic might claim for indirect discrimination.
Could not claim reasonable adjustments
She did not claim for reasonable adjustments in this case, doubtless because the Court of Appeal in Hainsworth has held that a claimant for reasonable adjustments must themself be disabled: Discrimination by association>Does not apply to reasonable adjustments or discrimination arising from disability.
Indirect sex discrimination
Whether or not this type of claim for indirect disability discrimination is upheld by the appeal courts, her claim for indirect sex discrimination seems sound.
It is accepted that women are particularly affected by employment practices that make it more difficult to care for children, and so can potentially claim indirect sex discrimination for this unless the employer can justify its practice: eg Hardy & Hansons v Lax on Objective justification defence>Objective assessment by tribunal, and in 2021 Dobson v North Cumbria (bdbf.co.uk). It seems right given the evidence that the employment tribunal effectively said the same applies to women looking after elderly relatives.
More on indirect disability discrimination claims by carers
A House of Lords Select Committee Report (parliament.uk) in 2016 (sub-heading “Carers and indirect discrimination”) raised the question of whether CHEZ might allow an indirect discrimination claim against the employer of someone who cares for a disabled person, perhaps if the employer’s policies do not allow enough flexibility for the carer to meet their caring responsibilities.
Assuming CHEZ applies to disability discrimination, as is likely, questions still arise on whether and how the case applies in this situation. For
