The follow up to Follows – Equality Act recognition of indirect discrimination by association

A new section of the Equality Act 2010 that expressly allows for associative indirect discrimination.

Regular readers will recall our article published in April 2022 Discrimination by perception and association – what employers need to know referring to the case of Follows v Nationwide Building Society [2018]. An employment tribunal found that Mrs Follows suffered indirect discrimination via her association with her disabled mother, who she cared for at home, when her employer failed to discuss alternatives to their requirement for her to spend more time in an office as part of a broader redundancy and reorganisation exercise.  Though employment tribunal decisions are not binding on other tribunals, the decision in this case at that time confirmed that indirect associative discrimination claims are possible. Mrs Follows was awarded nearly £350,000 in compensation by the Employment Tribunal.

What is indirect discrimination?

Under the Equality Act 2010, indirect discrimination is defined as a type of discrimination that occurs where;

• A applies to B an apparently neutral provision, criterion or practice (known as a PCP) such as a policy in the staff handbook or even an unwritten policy;
• A would apply that PCP equally to others;
• But the PCP puts or would put B and those who share B's protected characteristic at a particular disadvantage.

Unlike most forms of direct discrimination, indirect discrimination can be justified if the PCP is a “proportionate means of achieving a legitimate aim”, this is legal speak that says some form of discrimination can be justified if there is an appropriate and good enough reason for the discrimination when balanced against the impact on the individual, and it will fulfil a reasonable requirement of the organisation. 

What is associative discrimination?

Discrimination by association occurs where A discriminates against B because of a protected characteristic of a third party with whom B is associated. The question of how closely the employee and the person with the protected characteristic have to be associated and whether this form of discrimination applies to acts of indirect discrimination has been the subject of case law over the past decade.

How has the law changed?

Mrs Follows’ claim was successfully fought prior to the revocation of a long list of EU legislation and the ending of the principle of supremacy of EU law effective from 1 January 2024. Before this date its success relied heavily on the principles set out in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2014] where the ECJ held that a claimant can establish indirect discrimination claims if they do not themselves have the protected characteristic.

In effect, the decision in CHEZ demonstrated that the wording of s.19 Equality Act 2010 did not comply with the definitions of indirect discrimination present in European Law through the Equal Treatment Directive 2006 and the Equal Treatment Framework Directive 2000. As a result of the decision in CHEZ and up to the end of 2023, UK courts and tribunals were under a duty to take account of this decision to provide protection against indirect associative discrimination where it arises in indirect discrimination cases.

This legal duty fell away with the implementation of the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) at the beginning of the year which meant that relying on the principles established in EU cases has become more difficult. The gap has been plugged with the creation of a new section 19A in the Equality Act 2010. This means courts in the UK no longer have to rely on EU law to find that an employee has been indirectly discriminated against due to their association with a person with a protected characteristic.  Going back to the definition of indirect discrimination (above What is associative discrimination?) section 19A clearly sets out that where B is a person without a certain protected characteristic, B can still bring a claim if a PCP puts, or would put, B at substantively the same disadvantage as people who have the relevant protected characteristic.

What hasn’t changed in the law?

The law of reasonable adjustments has not changed; some cases decided before revocation of EU law would be more difficult for employees to win now. For example if a parent  sought to bring a claim for failure to make reasonable adjustments because their employer refused a flexible working request based on their need to care for a disabled child, they are unlikely to succeed under section 20 Equality Act, which sets out the duty to make reasonable adjustments to remove or reduce a disadvantage related to someone's disability. However the new section 19A may provide a claim if the employee could find a way of arguing the disadvantage they believe they are suffering as a PCP and bring an indirect associative discrimination claim instead.

What does this mean for employers?

With an aging population and employees remaining in the workplace longer, particularly women who are statistically more likely to undertake caring duties there will be an increasing pressure on many individuals to juggle work commitments and caring responsibilities. This has been recognised in the Carer's Leave Act 2023 which came into force on 6 April 2024, providing all carers in employment with a new statutory right to take five days of unpaid leave from work each year to fulfil their caring responsibilities.

Additionally employees can request flexible working arrangements for any reason; and from 6 April 2024 they have a right to request flexible working from day 1 in a new job and make two requests per year.  If an employer has a policy, written or unwritten but regularly applied, that places employees with caring duties (for a person with a disability) at a disadvantage  - for example a rigid approach to working patterns or attendance in the office that cannot be justified on the basis of the requirements of the employer, they may find themselves at the wrong end of a claim for indirect associative discrimination.

(For more information on changes to employment law which came into effect in April, please see our recent article:  Changes to key employment laws in April 2024 – what employers need to know.) 

Indirect associative discrimination can apply to protected characteristics other than disability, although to date it has most frequently arisen in relation to disability and it is the most likely scenario in a flexible working request. However, it may arise in relation to other protected characteristics where the Claimant suffers the same disadvantage as the disadvantaged group with the relevant characteristic. For example in CHEZ an electricity company placed electricity meters several meters high in districts inhabited mainly by persons of Roma origin. This was to prevent tampering with the meter but also it meant they were too high up to read. The claimant was not Roma herself but lived in a district heavily populated by Roma and she could not read her meter. So the electricity company’s policy put her at the same disadvantage as the Roma people although she was not of that ethnic origin. The EU court held she could claim for either direct or indirect race discrimination, even though she was not Roma.

How can an employer protect itself from such claims?

Employers should monitor their policies and procedures to consider whether they:

• Are effective in minimising the risk of discrimination;
• Promote equality; and
• Treat employees of all protected characteristics equally.

This will include monitoring the decisions taken by managers when applying the organisation’s policies and procedures to ensure they are not applied in a discriminatory way. Managers may need training to understand the potential impact of their decisions on employees who have specific protected characteristics or are associated with someone who has that protected characteristic.

When considering a flexible working request it is wise to investigate the reason for the request; if the proposal made by the employee does not meet business needs the employer should explore alternatives that may work. After the experiences of remote working during COVID and beyond it is often more difficult to justify a blanket policy for attendance in the office and to turn down a request for a more flexible approach. If a request cannot be met after consideration of alternatives, the employer is advised to fully record its decision and the reasoning behind it; so if challenged the employer can show the decision can be justified as the most reasonable way of securing the needs of the organisation.