Associative Discrimination: What Degree of Association is Required?
In a claim for associative victimisation, no particular relationship is needed between the victim of discrimination and the person who has done the protected act.
An employee can claim to have been victimised because of their association with other employees who have done a protected act. There is no need to establish a particular relationship between the victim and those who have done the protected act. The test is simply whether the victim was subjected to a detriment by reason of the third party’s protected act.
A person can claim direct discrimination if they are treated less favourably because of someone else’s protected characteristic, rather than their own. This principle is known as associative discrimination.
Victimisation occurs where a person subjects another person to a detriment because they have done a protected act. The courts have not previously considered whether an employee can claim victimisation where they have not done a protected act themselves, and instead rely on the protected acts of others.
In Thompson v London Central Bus Company Limited, Mr Thompson was a bus driver. He was dismissed for misconduct after he gave his high visibility vest to another employee. He appealed and his dismissal was overturned and replaced by an unpaid disciplinary suspension and a final warning.
He claimed this was victimisation. The real reason for disciplinary action was that he had relayed to management a conversation he had overheard suggesting that the company targeted employees who alleged it breached discrimination laws. This was a protected act by the employees concerned and he had been victimised because he was associated with them in the mind of the employer.
The employment tribunal ruled that a claim of associative victimisation can be brought and the company did not appeal this part of the decision. However, it went on to rule that the link or association between Mr Thompson and the individuals who had done the protected acts was so tenuous that he was not entitled to protection. Mr Thompson appealed this finding.
The Employment Appeal Tribunal allowed the appeal. There was no need for a particular relationship to be established between Mr Thompson and the protected acts of others. The test was simply whether he was subjected to a detriment by reason of a third party’s protected act. Any link between a claimant and a third party can exist solely in the mind of the employer. The fact that Mr Thompson and the third parties were members of the same union may be sufficient.
The Equality Act implements the EU Equal Treatment Directive. There is no requirement under the Directive for “association” as such. The issue is not whether there is a relationship between the victim and the third party, but whether, in the mind of the employer, the protected act of a third party was the reason for the treatment of the employee.
The EAT’s decision applies to associative discrimination cases in general, not just to associative victimisation. Most associative discrimination cases have been brought by employees alleging that they have been treated detrimentally because of a family member’s protected characteristic, for example their child’s disability. This case makes it clear that associative discrimination claims are not limited to such cases.
All an employee has to show is that they were treated less favourably because another person’s protected characteristic. No particular relationship, family or otherwise, is necessary. Of course, the looser the connection, the more difficult it will be for a claimant to show that this was the reason for the treatment.
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