In McLeod v The Royal Bank of Scotland, McLeod’s (M) son, Reece, has severe autism; ADHD; asthma and eczema. His behaviour is very challenging: he is unpredictable, struggles with communication, he doesn’t sleep, needs to be fed and has no awareness of danger. M’s physical and mental wellbeing suffered because of the impact of dealing with Reece’s disabilities. M has to constantly check and monitor Reece and ensure that he is not harming his younger brother, Alfie. M rarely sleeps.

As M’s maternity leave, following Alfie’s birth, progressed, M became concerned, that she would not be able to cope with a return to work. M’s GP advised her to consider a career break. M contacted her manager, Gibbons (G) who agreed to speak to HR and suggested that a year’s career break may be possible.

G eventually phoned M and told her that a career break could not be granted as Reece’s health could deteriorate and one year could lead to 3 years which could lead to 5 years. Therefore, if M did not want to return to work, in reality, her only option was to resign. M told G that if that was her only option, she did not know what option she had. M, however, did not resign, but G actioned a resignation when none existed and in doing so dismissed M.

An ET upheld M’s claims for unfair dismissal and direct discrimination by association, i.e. being treated less favourably because of her son’s disability, contrary to S.13 of the Equality Act 2010. M had been treated less favourably when her request for a career break to check and monitor Reece was refused and G told her that if she did not want to return to work her only option was to resign. The reason the career break was not granted was because of M’s son’s disability and the concern that one year would lead to 3 years, which would lead to 5 years.

S.13 of the 2010 Act provides protection against direct discrimination ‘because of’ a protected characteristic and this decision illustrates how the term ‘because of’ is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic. Here, the law protected M who, although not disabled herself, nevertheless suffered direct discrimination owing to her association with her disabled son.

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