The Employment Tribunal (ET) has recently awarded £345,708 to an employee responsible for caring for a relative who was made redundant after Nationwide changed its policy on remote working.

Mrs Follows was a Senior Lending Manager at Nationwide and was employed on a homeworking contract whereby her home was her principal place of work. She attended the office two to three days per week, but spent the rest of her time working from home as this better enabled her to care for her disabled mother.

Nationwide subsequently decided that all Senior Lending Managers must be permanently office-based, in order to properly supervise staff. Mrs Follows refused to accept this change and was consequently made redundant.

Mrs Follows was successful in her claim of indirect associative discrimination relating to disability. Essentially, the provision, criterion or practice (PCP) of mandating employees to work in the office full-time was deemed indirectly discriminatory as it treated Mrs Follows less favourably on the basis of disability. Indirect discrimination was given a wide interpretation and was applied despite the fact that it was an associate of the Claimant who was disabled, rather than the Claimant herself.

This decision is not binding on future tribunals, but it demonstrates tribunals interpreting the indirect discrimination provisions of the Equality Act in conjunction with case law. The use of indirect associative discrimination arose through the European case Chez and its application has seen courts allow employees to bring claims based on the protected characteristics of those with whom they are associated. Reliance on Chez will not be allowed or needed from 1 January 2024, by virtue of the Equality Act 2010 (Amendment) Regulations 2023 explicitly inserting the principle of indirect associative discrimination into the Equality Act.

The decision is a reminder for employers to proceed with caution when creating or changing policies relating to flexible working, specifically to consider carefully whether their PCPs on office working could disadvantage employees due to their association with someone who has a protected characteristic. A poorly planned policy brings the risk of successful unfair dismissal and/or discrimination claims.

As the case highlights, those with caring responsibilities may be particularly disadvantaged by a blanket office working policy and the ET in Follows accepted as a general point that employees with caring responsibilities are generally less likely to be able to comply with a full-time office policy. However, the same could also arise for other types of discrimination, such as a potential claim for sex discrimination on the basis that full-time office working inhibits childcare responsibilities.

If employers do seek to mandate full-time office working, careful thought must be given to the reasons for doing so. Employers should be clear on the business aims they are seeking to achieve, as well as whether they are objectively justifiable. When considering a full-time office policy, employers should ask:

• Does a full-time office policy negatively impact one group of employees over another?
• Have employees (and possibly their union representatives) been consulted about the proposed change and have any potential disadvantages been discussed?
• Can employees continue working from home effectively?
• Can the aims of a full-time office policy be achieved in an alternative way?
• Can employees who reject a full-time office policy be redeployed to a role where homeworking is suitable? Could they be given a flexible working policy?

If employers do implement a full-time office policy, they should ensure that they can document and substantiate with evidence the business aims behind the decision.

This decision on indirect associative discrimination highlights the importance of careful planning and consideration of individual circumstances when implementing policies, particularly in relation to returning to full-time office work. Since the pandemic made homeworking the norm, employees may have picked up caring responsibilities and other changed circumstances, and any employer policy must be mindful of this. Employers should think through the business aims of a full-time office policy, including whether it is objectively justifiable and whether there are any alternative ways of achieving it. Failing to do so could increase their vulnerability to a variety of claims.