The recent news that Nationwide Building Society was ordered by a tribunal to pay a former manager close to £350,000 in damages for unfair dismissal and discrimination has highlighted the risks employers face when managing the return to the workplace and changes to work patterns.
In Follows v Nationwide Building Society, Follows was employed as a senior lending manager (SLM) but attended the office a couple of times a week. Nationwide was aware that Follows had caring responsibilities for her elderly mother, which was the primary reason for her working from home for the remainder of her contracted hours.
Follows’s role was made redundant when Nationwide decided that all SLMs should be based in the office rather than working from home and Follows refused to accept the change to her contract. She brought a claim for indirect disability discrimination by association and unfair dismissal. The employment tribunal upheld her unfair dismissal claim and concluded that she was subjected to indirect disability discrimination, despite the fact it was her mother who was disabled.
The tribunal found that employees caring for disabled people are less likely to be able to satisfy a requirement to be office based than non-carers. As such, the requirement to be office based put Follows at a substantial disadvantage. The tribunal found that Nationwide had failed to discuss alternatives to being office based and could not show that their decision was based on legitimate evidence or rational grounds, but was based on ‘subjective impression’.
The outcome of this case highlights several issues for employers to consider, particularly with a growing number of organisations looking to return to pre-Covid office-based working arrangements.
Businesses need to consult with any employees affected by changes in terms and conditions of employment and explore any reasonable adjustments or alternatives that could accommodate their needs, such as part-time office working, flexible hours or remote working.
Employers should review their policies and practices on flexible and hybrid working and ensure that they are applied consistently and fairly across the organisation and that no one group of people, particularly those with caring responsibilities, is negatively affected otherwise they can face successful unlawful discrimination claims. Businesses must also remember that caring responsibilities do not only extend to people with children, but also to those with disabled relatives, even if the employee themselves is not disabled.
If an organisation does have legitimate reasons for implementing a change to working terms and conditions, they must ensure they document the reasons and the steps taken to avoid or minimise any disadvantage. An example of this could be allowing employees a trial period, to see if any alternative working arrangements are feasible, rather than reaching the conclusion they are not without that evidence.
It is also essential that employers provide training and guidance to managers and staff on disability discrimination, including indirect and discrimination by association, and the duty to make reasonable adjustments.
It may not always be obvious that an employee is protected under the Equality Act (as was the case here) because that individual may not be disabled but they may be associated with someone who is. In the case of Follows, the tribunal awarded nearly £350,000, which illustrates the costly fall out of unlawful discrimination and unfair dismissal in these scenarios.
Pam Loch is a solicitor and managing director of Loch Associates Group