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 this decision (which was never a binding precedent) is very unlikely to be followed now, as the worker was not put at the same disadvantage as disabled people.
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 (sometimes known as discrimination by association). The wording of s.19 EqA says the claimant must themself have the disability, but the tribunal said that s.19 must be re-interpreted 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
Comment: New s.19A from January 2024
The EqA has since been amended in the light of CHEZ, from 1st January 2024. A new s.19A permits, in broad terms, claims by people who do not have the protected characteristic (eg disability) but who are put at substantively the same disadvantage as those who do have it: “Same disadvantage” indirect discrimination (s.19A).
As to claims arising before 2024, the EAT in British Airways v Rollett & others has accepted that under CHEZ, s.19 EqA should be re-interpreted in a similar way, to allow claims for indirect discrimination by people who did not have the protected characteristic but suffered the same disadvantage: “Same disadvantage” indirect discrimination (s.19A)>Before 1st January, 2024.
However the new s.19A – and the Rollett re-interpretation of s.19 for pre-2024 claims – do not seem to allow a disability claim on the facts of this Follows case. It is difficult to see how the employer’s requirement not to work at home put the claimant, caring for her mother, at the same disadvantage as any disabled people to whom the employer’s requirement applied, ie any disabled work colleagues the claimant might have.
It is therefore very probable that an indirect disability discrimination claim on these facts will not succeed in future (see below on sex discrimination).
Could not claim reasonable adjustments
The daughter 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
Although her claim for indirect disability discrimination would very likely not be upheld now (see above), her claim for indirect sex discrimination seems more soundly based.
It is accepted that women can be 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). Whether a PCP puts women at a particular disadvantage in relation to caring responsibilities will depend on the evidence: Glover v Lacoste UK (bailii.org).
It seems reasonable given the evidence that the employment tribunal effectively said the same applies to women looking after elderly relatives. So far as women are protected, male carers may also now be able to claim under s.19A: “Same disadvantage” indirect discrimination (s.19A).
