The Extraordinary Notion of Associative Indirect Disability Discrimination

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Follows v Nationwide (2021) Redundant home-worker sues for disability discrimination because some home-workers have caring responsibilities

Discrimination law is far-reaching

Legal notions of discrimination are complicated enough. Beyond the straightforward case of direct discrimination (‘no women need apply’), there is (mis)perceived discrimination (say, a turbaned Sikh mistaken for a Muslim) and associative discrimination (say, worker sacked for marrying a black man). The matter becomes harder to grasp with indirect discrimination, where an apparently neutral practice adversely affects a protected group and is not justifiable. An example would be a seemingly innocent requirement for ‘management experience’, which is intrinsically liable to adversely affect women, being more likely to have had an interrupted career (Whyte v Falkirk [1997] IRLR 560 (EAT)), or for weekend working, as it is more likely that women would have childcare responsibilities (Shackletons v Lowe (EAT, 2010)).

ECJ and ‘collateral damage’

In 2015, the European Court of Justice (ECJ) was credited with taking these notions even further, with extended associative direct and indirect discrimination (Case C-83/14 CHEZ). The facts were relatively straightforward. In a predominantly Roma district, an electricity supplier hostile to Roma people moved meters so high that they could not be read, inconveniencing both Roma and non-Roma residents. The ECJ stated that the supplier could be liable to the similarly inconvenienced non-Roma residents for direct (racial) discrimination. Although heralded as a case of extended associative direct discrimination (e.g. Hainsworth v Ministry of Defence UKSC 2014/0164), it was no such thing. Without any reference to the notion of ‘associative discrimination’, the ECJ held simply that those suffering ‘collateral damage’ from an act of discrimination against others could sue for discrimination. The ECJ went on to suggest in the alternative that the non-Roma residents could still sue if it were found that the supplier’s action were not hostile to Roma people, and could be characterised as an apparently neutral act against particular district, rather than a particular racial group.

Employment tribunal further extends ECJ law

This suggestion was taken up recently by an employment tribunal as one of associative indirect discrimination. In Follows v Nationwide Building Society (2021) the employer decided that Senior Lending Managers could no longer work at home on a full-time basis. The claimant, whose home-working allowed her to care for her disabled mother, brought an action for unfair dismissal and discrimination. The employment tribunal found for her on three bases. First, the dismissal was unfair (the employer’s ‘fair’ reason of redundancy was not made out [86]). Second, the dismissal amounted to indirect sex discrimination (the decision being more likely to adversely affect women, who are more likely to be home-carers [106]-[108]). Third, and this is the exceptional finding of the case, citing CHEZ, the tribunal found that the employer’s decision amounted to extended associative indirect disability discrimination.

Extraordinary potential ECJ decision

The suggestion in CHEZ is itself open to criticism (see e.g. (2021) NILQ 72 (3) 510), with the potential to produce surprising and unwieldy results. For instance, in Hussein v Saints Complete House Furnishers [1979] IRLR 337 (IT) a retail furniture store refused to hire youths from the city centre on the belief that they attracted unemployed friends who loitered in front of the shop. Compared to other districts in the city, the centre was disproportionately populated with black and Asian residents, one of whom won a claim of indirect discrimination after the store refused to consider him for employment. Upon the CHEZ Judgment, any white person from that district could sue for indirect discrimination. (If the embargo were motivated by race, under CHEZ, the discrimination against the white resident would be direct.) The harm could range from being rejected, to being deterred from applying, or just the resultant stigma as a resident. One could conjure up all manner of similarly far-reaching examples (see Malone (2017) 46(1) ILJ 144).

Excluded nursery children can sue for sex discrimination

According to the Advocate General in CHEZ (whose Opinion was neither endorsed nor rejected by the Court), a ‘collateral damage’ claimant need not have suffered the same treatment or harm as the principal victims. She deployed an example of an employer providing nursery care for children of its full-time employees only. Assuming that this amounted to indirect sex discrimination against the (disproportionately female) part-timers, the collateral damage suffered by their children enabled these children to likewise sue for indirect sex discrimination ([AG107]). Upon this, irrespective of any disability, Ms Follows’ mother could sue for sex discrimination as someone having suffered collateral damage from the sex discrimination against her daughter.

Did the employment tribunal go too far?

However, the disability claim in Follows is more significantly different from CHEZ, because any collateral damage suffered by the claimant’s mother does not arise from another unlawful act (there was no disability discrimination per se against Follows). There is also no legal relationship between her and her daughter’s employer (unlike the non-Roma and the electricity supplier). Thus, Follows is a step removed from the facts of CHEZ, or the Advocate General’s nursery example. Indeed, on the logic of Follows, those working from home and caring for elderly parents or young children could sue for indirect age discrimination, should they be dismissed or otherwise treated less favourably for being a homeworker. The ECJ in CHEZ gave no reasoning for its suggestion that in the absence of anti-Roma hostility, the neutral practice indirectly discriminated against non-Roma (unless justified). The EU discrimination Directives and the UK Equality Act 2010 all require a victim/claimant of indirect discrimination to belong to the relevant suspect class, and to have suffered the same harm as the group. This is in contrast to the parallel definitions of direct discrimination, which deliberately were drafted more broadly to encompass the likes of perceived and associative (direct) discrimination. Despite its ‘civil law’ nature (not having a strict adherence to precedent), the ECJ would have to explain its departure from the wording of the Directives' formula before its suggestion could be understood as a coherent theory. As such, it is unlikely that Follows could survive an appeal on this finding.