Nationwide Building Society have recently been fined £350,000 for indirect disability discrimination by association, against a former senior manager who was made redundant after refusing to attend the office full-time, after being employed on a Homeworking contract.
In light of the fact that more employees are now contracted on a hybrid or homeworking basis, this case probably holds more relevance. It provides a stark reminder of the importance of understanding the needs and circumstances of the workforce to ensure correct procedures are followed when introducing new policies or amending terms and conditions.
Follows v Nationwide – the case
Nationwide insisted that all senior managers attend the office full-time to provide more support for junior members of staff. It was deemed they required more face to face supervision. Follows was employed on a Homeworking contract but did attend office meetings and for a few days in the week. She required this flexibility in order to care for her elderly, disabled mother. Follows requested that her Homeworking contract continue due to her caring responsibilities. This was subsequently denied and she was made redundant.
Follows brought a case against Nationwide for sexual discrimination and disability discrimination.
The Employment Tribunal upheld her claim of indirect disability discrimination and found she was placed at a substantial disadvantage with senior management by no longer being allowed to work from home. Despite not being disabled herself, it was the association with her mother who held the protective characteristic which provided this protection.
Nationwide did not base their decision on any factual evidence but on subjective impressions. There was no analysis of the business needs or consideration for alternatives.
What does this mean for HR?
This case shows how widely the Tribunal will interpret individuals with a protected characteristic which reaches as far as those who are affected but do not necessarily hold the disability themselves.
There are a number of considerations employers should be aware of when making changes to the terms and conditions of an employment contract or amending policies, to ensure they are compliant:
- Assess the impact of any new or amended policies on all employees. Consider those with a protected characteristic and in the context of disability, any association to the characteristic.
- Consult all employees before making any changes and get feedback on the new proposals.
- Consider alternatives and be prepared to compromise.
- Listen to objections and understand why certain employees may not be able to fulfil these changes.
- Take reasonable steps to avoid less favourable treatment and understand individual circumstances.
- Trial periods are useful to evidence whether the changes proposed by the employer or the employee are working or not.
Communicating with your employees is key to successful implementation of any new or amended policy or change in terms and conditions. Flexible working, hybrid and changes to work patterns should always be considered when balancing with the needs of the business in order to avoid claims of discrimination.
If you need help amending a policy or the terms and conditions in a contract, we can help. Contact us on 0345 076 2288 or complete the form below: