Tribunal opens up possibility of new rights for carers of disabled adults

An employment tribunal has upheld a claim for indirect disability discrimination brought by a worker caring for a disabled adult. Although not binding on other tribunals, this is believed to be the first time a tribunal has accepted that such a claim can be brought by a worker who is not disabled but who is a carer for a disabled person: in other words a claim for associative indirect discrimination.

The claimant in this case was a Senior Lending Manager for Nationwide Building Society. She had a homeworking contract, but in conjunction with a redundancy programme which reduced the overall number of SLMs, Nationwide decided that she could no longer work from home. The reason given was that they needed “effective on-site supervision” and that there were now too few SLMs to provide this, unless all SLMs came into the office. The claimant was unwilling to agree to this, because of her caring responsibilities for her disabled mother. Nationwide was aware of these circumstances.

In the end the claimant was dismissed on redundancy grounds and she brought a number of claims before the employment tribunal, including indirect disability discrimination by association. Based on a ruling from the European Court of Justice known as Chez, the employment tribunal decided that under EU law indirect discrimination claims could in principle be brought not only by members of the group disadvantaged by a particular policy (in this case disabled people) but also by people closely associated with that group (like carers for disabled people).

Even though section 19 of the Equality Act (which defines indirect discrimination) appears to exclude such claims, the tribunal decided that the definition could be “read” in a way that aligned it with EU law. It went on to find that the aim of “effective on-site supervision” was not legitimate (because it was tainted with discrimination). Alternatively, it decided that Nationwide had not been able to show that applying the policy to her was a proportionate means of achieving a legitimate aim. The claim for indirect disability discrimination was therefore upheld.

This decision may not in fact be as revolutionary as it sounds for two reasons. Firstly, the tribunal's reading of the Equality Act will need to be confirmed by the Employment Appeal Tribunal before it is binding on other tribunals. Secondly, the tribunal also upheld a claim for indirect sex discrimination. Statistics show that women are significantly more likely than men to be carers for disabled adults, so under conventional discrimination law principles, a policy that excludes homeworking is likely to risk a challenge on sex discrimination grounds, not only from women with caring responsibilities for children, but also from those caring for adult dependants.

However this decision certainly does highlight the need for employers to be aware that excluding homeworking for particular jobs is likely to have a significant impact of workers of both sexes who are caring for disabled adults. Better then to err on the side of caution, and make sure the needs of this group are factored into the policy making process, than risk a novel disability discrimination challenge.

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