Sussex employers urged to tread carefully by Brighton-based law firm after unfair dismissal for ‘home working’ manager

Jayne Follows had been allowed to only come to Nationwide’s office two to three times a week so she could care for her elderly disabled mother but then the building society decided it wanted to eliminate 'home working' contracts. Pam Loch, Solicitor and Managing Director of Sussex-based Loch Associates Group, explains the risks employers face when trying to change employees’ working arrangements, especially those with caring responsibilities, and what can be done to counter these.

“Ms Follows brought a claim for indirect disability discrimination by association and unfair dismissal. The Employment Tribunal upheld her unfair dismissal claim and concluded that she was subjected to indirect disability discrimination, despite the fact it was her mother who was disabled and not Ms Follows. The Tribunal found that employees caring for disabled people are less likely to be able to satisfy a requirement to be office-based than non-carers. As such, the requirement to be office based put Ms Follows at a substantial disadvantage. The Tribunal found that Nationwide had failed to discuss alternatives to being office based and could not show that their decision was based on legitimate evidence or rational grounds but was based on ‘subjective impression,” said Pam.

Loch Associates Group stressed that the outcome of this case highlights several issues for Sussex employers to consider, particularly with a growing number of organisations looking to return to pre-Covid office based working arrangements.

“Employers need to consult with any employees affected by changes in terms and conditions of employment and consider any legal obligations, for example make any reasonable adjustments and consider alternatives that could accommodate their needs, such as part-time office working, flexible hours, or remote working. Employers should review their policies and practices on flexible and hybrid working and ensure that they are applied consistently and fairly across the organisation and that no one group of people, particularly those with caring responsibilities, is negatively affected otherwise they can face successful unlawful discrimination claims.”

Pam added: “Employers must also remember that caring responsibilities do not only extend to people with children, but also to those with disabled relatives, even if the employee themselves is not disabled.”

Loch Associates Group warned that if an employer does have legitimate reasons for implementing a change to working terms and conditions, they must ensure they document the reasons and the steps taken to avoid or minimise any disadvantage. An example of this could be allowing employees a trial period, to see if any alternative working arrangements are feasible, rather than reaching the conclusion they are not without having objective evidence to support that conclusion.

“It is essential that employers provide training and guidance to managers and staff on disability discrimination, including indirect and discrimination by association, and the duty to make reasonable adjustments.

“It may not always be obvious that an employee is protected under the Equality Act (as was the case of Ms Follows) because that individual may not be disabled but they may be associated with someone who is,” Pam concluded.