Despite the current advice from the government about working from home, if employers are considering their longer-term working plans, caution should be exercised when it comes to asking employees to return to the office full time, particularly if they have caring responsibilities.
An employment tribunal case reported in 2021 concluded that an employee who cared for her disabled mother was indirectly discriminated against on the grounds of disability, despite not having a disability herself.
In Follows v Nationwide Building Society, an employee who was a senior manager had the primary caring responsibilities for her disabled mother. As a result of her caring responsibilities, she had previously agreed a working pattern with her employer where she had a home working contract; however, generally, she attended the office only two or three days per week.
The employer introduced a new policy which required all managers to attend the office five days a week. The employer’s aim in introducing this was that having managers in the office would provide on-site supervision. At the same time as introducing this policy, Nationwide also started a redundancy process which included the claimant. Because the claimant was unable to comply with the office working policy due to her caring responsibilities, she was selected and was dismissed.
Indirect associative discrimination?
The concept of associative discrimination is well established in direct discrimination cases. However, what about in indirect associative discrimination? Following the European Court of Justice Decision in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, the tribunal in Follows held that the Equality Act 2010 must be read to extend the concept of associative discrimination to indirect discrimination. This meant the employee was protected from indirect discrimination on the grounds of her mother’s disability, even though the employee herself was not disabled.
The tribunal accepted as a general principle that those with caring responsibilities are less likely than those without caring responsibilities to be able to comply with a requirement to be office based. With indirect discrimination, employers are able to try and justify a requirement on the grounds that it has a legitimate and objective reason. However, in this case, the tribunal did not accept that the employer’s aim of providing on-site supervision was legitimate, as the aim itself was discriminatory. However, even if it had been a legitimate aim, the employee’s dismissal was not a proportionate means of achieving that aim, given that a hybrid working arrangement had previously operated successfully on the facts.
This decision is not binding on other tribunals and, as a result of Brexit, it is open to the higher courts to depart from the principle established in the CHEZ case on appeal. However, it is a salient reminder to employers of the difficulties they might face when dealing with flexible working requests or introducing new working patterns and possible resistance to returning to the office after long periods of working from home during the pandemic. It is also notable that this is the first time the concept of associative discrimination has been held to apply to indirect discrimination in the UK.
Managing a return to site
When considering a return to the office or a flexible working request, employers should review their policies on home working and flexible working, and carefully consider the business aims they are seeking to achieve and whether these can be objectively justified. Does a requirement negatively impact one group of employees more than another? Can the policy be objectively justified? Can the aims of the policy be achieved in a less discriminatory way?
Employers should be mindful of the impact changing working requirements might have, not just on those with protected characteristics, but also those with caring responsibilities, and consider whether there are any other less discriminatory ways of achieving the same business aims. It is about balancing the needs of the business against the impact on the individual as well as encouraging open discussion and communication.
While not impossible, justifying full-time office work may become more difficult and careful thought must be given to the reasons being relied upon, and their impact on particular groups of employees. A poorly-thought-out or blanket policy is likely to result in successful discrimination and/or unfair dismissal claims.
Emma O’Connor is a director at Boyes Turner