In the recent case of Thompson v London Central Bus Company Ltd, an interesting new principle may be beginning to develop in discrimination law. The ‘potential’ to expand the scope of associative discrimination is an interesting new principle beginning to develop in discrimination law.
In this case, the Employment Appeal Tribunal (EAT) has held that the tribunal had been wrong to strike out a claim of victimisation “by association”. Before this judgment, it was thought that legislation was limited to cover “associative” discrimination in line with direct discrimination (section 13, Equality Act 2010) and harassment (section 26, Equality Act 2010) only. The EAT allowed the appeal on the basis that a claim for associative victimisation is possible under the Equality Act 2010 and remitted the case for rehearing.
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.
The case has been remitted for hearing so we will keep you updated with developments. It is going to come down to whether section 27 of the Equality Act 2010 (which sets out the victimisation provisions) must be read as allowing claims based on the acts of third parties. This could cause a significant shift in the law.