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Carers, Home Working and Discrimination - Guideline Ruling

The COVID-19 pandemic has massively increased the prevalence of home working but, for some, working away from the office is far more than just a preference. In a guideline case on point, an Employment Tribunal (ET) emphasised the rights of carers who work from home in order to look after disabled loved ones (Follows v Nationwide Building Society).

The case concerned a building society manager who was employed under a home working contract because she was primary carer for her mother, who suffered from chronic obstructive pulmonary disease. After she was dismissed, purportedly on grounds of redundancy, she launched ET proceedings.

Upholding her unfair dismissal claim, the ET found that the reason for her dismissal was not redundancy but the desire of management to delete home working positions at her grade. The employer provided her with little rationale for that stance and was not prepared to engage with her unless she accepted the loss of her home working contract. That fell far outside the responses open to a reasonable employer.

In also upholding her complaint of indirect, associative disability discrimination, the ET noted that the Equality Act 2010 does not require the protected characteristic to be that of the complainant. The less favourable treatment simply has to be because of a protected characteristic and the woman could thus be subjected to discrimination because of her association, as a carer, with her disabled mother.

The requirement that managers of her grade could no longer work from home on a full-time basis placed the woman at a substantial disadvantage due to her caring role. The employer had neither taken reasonable steps to avoid that disadvantage nor shown that the requirement that she base herself in the office was in pursuit of a legitimate aim. It was self-evident that carers for disabled people are less likely to be able to satisfy a requirement to be office-based.

The woman's claim of indirect sex discrimination also succeeded on the basis of statistical evidence which established that significantly more women than men take primary responsibility for caring for elderly relatives at home. The employer was aware of her caring role and its attempt to make her give up home working had a significant disparate effect on her because of her sex. The amount of her compensation would be assessed at a further hearing, if not agreed.

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