Discrimination by association: EU law is not yet dead?

What is Discrimination by association?

It is common knowledge that the Equality Act 2010 prohibits four main kinds of discrimination.

Direct discrimination

Where a person (A) is treated less favourably than another because of a protected characteristic.

Indirect discrimination

Where an employer’s provision, criterion or practice (PCP) applies to everyone, but it puts people with a particular protected characteristic at a disadvantage. Indirect discrimination occurs where that PCP cannot be objectively justified.

Harassment

Where A engages in unwanted conduct related to a protected characteristic which has the purpose and effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Victimisation

Where A subjects B to a detriment because B has done a protected act or A believes that B has done or may do a protected act. A protected act is defined in the Equality Act 2010 and includes, for example, the bringing of a Tribunal claim.

However, discrimination by association is a lesser-known sub-set of discrimination and is often not talked about with the same level of frequency. Discrimination by association applies where the person who is subjected to the discriminatory act has no protected characteristic personally, but instead is associated with someone with the relevant protected characteristic. In other words, discrimination by association occurs where A is treated less favourably than another because of a protected characteristic of B. 

Discrimination by association originates from European case law and in particular the case of CHEZ v Komisa. In that case, the Claimant lived in a region of Bulgaria largely occupied by those of Roma origin, but was not of Roma origin herself. The Claimant wanted to check her electricity meter, but it was placed too high up. The company justified the measures as necessary because there had been instances of the Roma population tampering with the meters. The European Court of Justice noted that the concept of equality must be read broadly. Therefore, a discrimination claim can succeed where persons “although not themselves a member of the… group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds.”

For a long time, it was thought that discrimination by association was only possible for cases of direct discrimination. However, the recent case of Follows v Nationwide has found that associative discrimination can extend into indirect discrimination.   

Follows v Nationwide

The Facts

Mrs Follows was a Senior Lending Manager at Nationwide from 2011 to 2018. She was also the carer for her elderly disabled mother. To facilitate her care responsibilities, the Claimant was employed on a formal homeworking contract meaning her primary place of work was at home. In reality, the Claimant worked from the office two or three times a week and the rest at home. There were no issues with her performance; the Claimant was expressly praised for her supervision to “optimise the development of the team”.

The employer took the decision to make four Senior Lending Managers redundant and concurrently eliminate the homeworking contract. The Claimant was unhappy about this requirement, as it meant she could no longer balance her care and working responsibilities. The Claimant requested her homeworking contract continue but this was rejected. Six Senior Lending Managers volunteered for redundancy, but the Claimant was made redundant (despite not volunteering) given she wanted to remain employed under her current contract.

The Claimant brought a case for unfair dismissal and discrimination, including indirect discrimination by association and indirect sex discrimination.

The decision

All claims succeeded. The building society had enough volunteers and so the dismissing of the Claimant did not amount to a genuine redundancy. The claim of indirect sex discrimination was also made out – the tribunal accepted expert evidence that a requirement to come into the office, the apparent reason for the dismissal, would impact those with care responsibilities who were more likely to be women.

Most interestingly, the Tribunal also allowed her indirect disability discrimination claim. The Tribunal noted that the Equality Act 2010 had to be read in line with the CHEZ case above. It was recognised that carers of disabled people are more likely to be substantially disadvantage by a requirement to come into the office than those who were not associated with someone with a disability. The employer tried to argue the measure was necessary due to the need for in person supervision. The tribunal rejected this claim as firstly, the “in person” requirement was causing the disadvantage and could not be used to justify it and secondly, the effectiveness had no rational basis in evidence. Furthermore, the actions were not proportionate as there was no attempt to balance the restructure with the Claimant’s need; the employer failed to properly engage with the Claimant and more proportionate means were available.

Lessons to be learnt from this judgment

Discrimination by association has evolved slowly, however, it seems likely that so long as CHEZ remains part of retained EU law, discrimination by association will continue to develop as a valid claim under the Equality Act 2010. With this in mind, here are a few key lessons from this case:

Do not impose a procedure onto a process to which it does not belong

One of the main issues in this case was that there were two different processes being conflated into a single procedure. On the one hand, there was a legitimate reduction in headcount due to falling business needs; on the other, there was a desire by management to implement a variation to the terms and conditions of the Claimant’s contract of employment. Each issue entails specific legal risks and needs to be considered separately even if the two events occur contemporaneously.

Ensure that your processes and policies leave sufficient room to explore other options. Remember, a universal policy can still cause significant disadvantage for certain groups with protected characteristics. The Tribunal was critical of the employer’s insistence the Claimant had not made an official “counter-offer” as a reason for failing to engage with the Claimant’s alternative proposal to redundancy, even though it was obvious she had.

Objective justification

Remember the policy causing the discriminatory impact cannot be used as a justification in and of itself, especially with a lack of objective evidence. In this case an accepted legitimate aim might have been to improve effective supervision. Ensure that any justifications is based on objective evidence.

Proportionality

Proportionality must work in tandem with the legitimate aim. Consider the specific situation of the employee in question. Is the measure proportionate or is there a less restrictive way the aim could be achieved as effectively? If there is, it should at least be considered. It is also best practice to ensure you have open communication with the employee. The outcome should not be predisposed and efforts should be made to understand the employee’s position in full before any decision is made.

Reporting and knowledge

Encourage employees to share any care responsibilities that they may have with HR and make adjustments appropriately. Not only will this help foster a more open culture but will help you avoid discrimination risks in large-scale decisions.

With special thanks to Alex Evans, a current paralegal in the Employment team, for his help with this blog.

If you require further information about anything covered in this blog, please contact Alice Yandle or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2021