It has been established law since 2006 that a person can bring a claim for direct discrimination if they are treated less favourably because they are associated with someone a protected characteristic (age, sex, race, disability), even if they do not share that protected characteristic.
A 2015 European case, “Chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia” (Chez), then established that a claimant can also establish an indirect discrimination claim, even if they do not share the protected characteristic of the disadvantaged group. The Chez case however was not an employment case (it concerned the impact of the height at which electricity meters were placed), and therefore the question which remained open was whether or not the Employment Tribunals in England and Wales would interpret the Equality Act 2010 to allow an indirect associative discrimination claim. Following the case of Follows v Nationwide Building Society ET/2201937/18, the answer is, yes.
Under Section 19 of the Equality Act 2010, a person discriminates against another (B) if they apply a ‘provision, criterion or practice’ (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s. The wording of the Act provides that the PCP would be discriminatory if it (i) applies to others who do not share B’s protected characteristic, (ii) it puts others with that protected characteristic to a disadvantage and (iii) it puts B to that disadvantage (unless the discrimination can be justified as being a proportionate means of achieving a legitimate aim).
In the Follows case, Mrs Follows worked for Nationwide as a Senior Lending Manager. She had agreed a flexible working arrangement because she had to care for her disabled mother, but Nationwide subsequently introduced a policy that all management staff must work from the office to provide adequate supervision (that was a PCP applied to all staff in a management role, including Mrs Follows). Mrs Follows refused to work exclusively from the office because she had to care for her disabled mother. She was therefore selected for redundancy on the basis of that refusal and Mrs Fallows claimed indirect associative discrimination.
Nationwide argued that Mrs Follows could not claim indirect associative disability discrimination because the wording of section 19 of the Equality Act 2010, required her, specifically, to have the protected characteristic (disability in this case) but the Employment Tribunal concluded that section 19 of the Equality Act 2010 must be read in a manner consistent with the judgment in Chez. Therefore, the reference to a “relevant protected characteristic of B’s” in section 19 of the Equality Act 2010 must be read so as to apply to employees who are associated with a person with a relevant characteristic.
This is a seismic shift in the law on indirect discrimination and means that it would be sufficient for a person to show that they suffer a particular disadvantage, alongside a disadvantaged group, rather than having to share the protected characteristic. Although the case is not binding on other Employment Tribunals as it is only a first-tier decision, it suggests that where a PCP disadvantages an employee who has an association with an individual with a protected characteristic, the Employment Tribunal may more readily find that indirect discrimination applies.
If you aren’t receiving our legal updates directly to your mailbox, please sign up now
Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.