Jayne Follows, who the tribunal heard was a “top performer” at work and carer to an elderly and disabled mother, successfully brought a claim of indirect disability discrimination and unfair dismissal against the bank.
The result ends a five-year dispute between the two parties, which started in 2017 after Follows was told she was at risk of redundancy for refusing to give up her existing working conditions.
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The bank had previously allowed certain employees a home-working contract and Follows, who typically worked two to three days from the office, agreed her working pattern with Nationwide.
The firm was also made aware of Follows’ caring responsibilities.
In October 2017, Nationwide decided to cut a number of senior managerial positions, including the one Follows held, and eliminate home-working to make sure the remaining managers were able to give junior staff more supervision.
After declining to give up her days working at home, Follows was told that she was at risk of redundancy.
A month later, she sent a formal complaint to her operations director complaining that the company was seeking to change her existing working conditions.
When asked to make a counter-proposal, Follows told her director: “My counter-proposal is [for me] to continue on my existing home-working arrangement and this is never going to be supported [by you] based on unsupported and non-existent 'business needs'.”
Follows was made redundant the following January.
She then sued the company for sex and disability discrimination, and unfair dismissal, with the tribunal upholding the latter two claims.
Follow’s suit serves to highlight the risks employers face when managing a return to the office, according to Pam Loch, solicitor and managing director of HR and law consultancy Loch Associates.
She told HR magazine: “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 to the employees.”
Nationwide’s decision to make Follows redundant was found by judge Mark Emery to have no basis in evidence.
He said: “[Nationwide's] view was not based on actual evidence or rational judgment and was instead based on subjective impressions."
Kate Palmer, HR advice and consultancy director at consultancy Peninsula, told HR magazine that businesses must stick to evidence-based decision-making.
She said: “Without the evidence to back these decisions – which in this case was so drastic that it resulted in the termination of employment – decisions will not stack up.
“It should have been clear to the employer that the claimant’s performance did not substantiate their assertions that office working was better.
“[Nationwide] had made up their mind that they wanted the claimant to work from the office and would not entertain any other option, regardless of the circumstances.”
Loch added that indirect discrimination rules had been another stumbling block for Nationwide, as the employer failed to consider Follows’ caring duties when mandating her return to the office.
She said: “It is also 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 Follows) not because that individual may be disabled, but because they may be associated with someone who is.
“In Follows’ case, the employment tribunal awarded nearly £350,000, which highlights the costly fallout of unlawful discrimination and unfair dismissal in these scenarios.”
