An employment tribunal (so not a binding precedent) has accepted a claim for indirect disability discrimination by the carer of a disabled person asked to give up a home-working contract.
The claimant was the carer for her disabled mother. She had a ‘home working contract’ though it seems she was in the office 2-3 days a week. In a redundancy exercise, the employer decided that those staying on should no longer be on home working contracts. The claimant was dismissed.
The employment tribunal accepted her claim for indirect disability discrimination based on the disability of her mother. The wording of s.19 EqA did not allow the claim – the claimant herself would have to be disabled. However the tribunal said this section must be read in a manner consistent with CHEZ, an EU court decision. Discrimination such as this by reference to someone else’s disability is commonly known as ‘discrimination by association’.
The tribunal held the employer had not shown justification for its requirement that staff in her role could no longer work at home on a full-time basis.
The tribunal also upheld her claim for indirect sex discrimination, on the basis of statistical evidence that women were more likely to be carers for elderly relatives.
It remains to be seen whether this type of claim for indirect disability discrimination ‘by association’ is upheld by appeal courts. Discrimination by association does not apply to reasonable adjustment claims. However if this decision is upheld, an indirect discrimination claim could to some extent cover the same ground as a reasonable adjustment claim.
The case was Follows v Nationwide Building Society, www.gov.uk/employment-tribunal-decisions/mrs-j-follows-v-nationwide-building-society-2201937-slash-2018