Associative Discrimination : Frequently asked questions

Over the last few years we have seen a number of decisions made by the Employment Tribunal on the concept of associative discrimination.

Frequently asked questions on associative discrimination

In this blog we look at frequently asked questions regarding associative discrimination and what the implications are for employers.

What is associative discrimination?

Associative discrimination is the legal term that applies when someone is treated detrimentally because someone they are associated with has a protected characteristic.

For example, it would be unlawful to refuse to offer someone a promotion because they have a disabled child or because of their spouse’s religious beliefs.

What claims can employees bring for associative discrimination?

The Equality Act 2010 protects an employee against harassment based on someone else’s protected characteristic and direct discrimination against someone based on someone else’s protected characteristic.

The wording of the Equality Act 2010 does not expressly allow claims for associative discrimination for what is known as indirect discrimination. This is where an employer applies a provision criteria or practice to all employees, but this places a particular group of employees at a disadvantage due to their protected characteristic. It also doesn’t expressly allow claims for victimisation based on association. This is where an employee is treated detrimentally for raising concerns regarding discrimination or supporting another employee to do so.

Can employees bring claims for victimisation due to association?

Although not included in the Equality Act 2010. the case of Thompson v London Central Bus Company Ltd began to expand the scope of associative discrimination to victimisation.

In this case, the Employment Appeal Tribunal (EAT) held that the tribunal had been wrong to strike out a claim of victimisation “by association” and that in principle associative victimisation is possible under the Equality Act 2010.

The case concerned a bus driver who was dismissed by LCB Ltd for giving his high-visibility vest to another employee. He was reinstated on appeal, but claimed that the original dismissal decision was an act of victimisation. The bus driver’s case was not that he had done a protected act himself, but that he was subjected to a detriment because of a protected act done by others. The bus driver claimed that he had told his manager about a conversation he had overheard where other employees (part of the same trade union as him) were accusing the company of breaching the Equality Act. The bus driver’s claim was that, since this time, his manager associated him with those employees and their protected act and as such he suffered a detriment (i.e. his dismissal).

At the tribunal, the claim was struck out at preliminary hearing stage, on the basis it had no reasonable prospects of success. The bus driver appealed to the EAT and it was held that the claim of victimisation “by association” should not have been struck out. The EAT’s view was that such a decision should not have been made without hearing all the evidence and it was entirely possible that employee’s membership of a trade union, which had protested about protected acts, might cause an employer to treat the employee in a detrimental way.

This decision is not binding on other Employment Tribunals. However it establishes that there is a potential for victimisation based on association with another person.

Can employees now bring claims for indirect discrimination due to association?

Although not included in the Equality Act 2010, another recent case of Follows v Nationwide Building Society began to expand the scope of associative discrimination to indirect discrimination.

In the case the employee argued that they had suffered from indirect disability discrimination based on her association with her disabled mother.

Although the Equality Act 2010 doesn’t cover indirect discrimination by discrimination, the employee argued that the EU law that the Equality Act originally implemented is wider and does not require the employee to have a protected characteristic themselves to be protected from discrimination. They argued that the Equality Act should be interpreted more widely to give this protection.

Throughout Mrs Follows employment with Nationwide she was a homeworker. The primary reason for her working from home was because she was her disabled mother’s carer. Nationwide was aware of this. Mrs Follows did attend the office two or three days a week. Her performance was always rated highly.

Nationwide decided to reduce the number of employees in Mrs Follows role and that that the remaining employees would be required to work in the office. They therefore placed Mrs Follows at risk of redundancy. Nationwide received enough volunteers for redundancy to avoid compulsory redundancies. Mrs Follows wanted to retain her role, but keep her existing arrangements to work from home. Nationwide refused to give this flexibility and she was made redundant. Another home working employee was equally made redundant.

The Employment Tribunal decided that Mrs Follows could bring a claim for indirect discrimination by association as the Equality Act had to be interpreted in line with the EU directive which permitted this in principle. They accepted that it was self evident that carers for disabled people are less likely to be able to satisfy a requirement to work from the office and that the requirement to no longer work from home put Mrs Follows at a substantial disadvantage because of her association with her disabled mother. As Nationwide had not provided alternatives or properly considered the issue, they had not taken reasonable steps to avoid the disadvantage. They also found that Nationwide’s rationale of providing effective on-site managerial supervision in itself contained a discriminatory element and therefore could not be a legitimate aim that could justify the disadvantage and in any event, this would not be proportionate.

Again, this decision is not binding on other Employment Tribunals. However, it is significant as it demonstrates that indirect associative discrimination claims are possible.

What should employers do to prevent claims for associative discrimination?

Following the recent cases, employers should carefully consider whether any new policies or procedures they introduce could disadvantage employees as a result of their association with someone else. If an employer is aware that an employee has caring responsibilities for a disabled person they must take particular care to consider the disadvantages they might suffer as a result. When imposing a requirement that may have an adverse impact, such as working from the office, employers must be careful to ensure that they consider whether the requirement is a proportionate means of achieving a legitimate aim.

What training should employers provide to employees on associative discrimination?

When faced with claims for harassment and direct discrimination, employers may have a defence if they can show that they have taken reasonable steps to prevent this occurring. This includes having appropriate policies in place and providing effective training to employees. It is important that all employees understand that they must not subject anyone to harassment on the basis of their association with someone with a protected characteristic.

If you need further information on associative discrimination please contact a member of the Employment team.

Employers must carefully consider whether any new practices, criteria and policies (PCPs) could disadvantage employees as a result of their association with someone who has a protected characteristic. Depending on the nature and significance of a proposed PCP, it may be wise to consult with employees regarding any potential disadvantages they might suffer as a result. Similarly, the same task should be undertaken during a redundancy consultation process. Employers should also always ask themselves whether this is a proportionate means of achieving a legitimate aim.