Associative discrimination

There is some uncertainty about what associative discrimination is, and the types of claim which may succeed under the Equality Act 2010. Associative discrimination claims are relatively rare but happen when a claim is made based on discrimination which is not because of a protected characteristic the Claimant personally has, but because of the protected characteristic of another individual.

In a recent case against Tesco, a customer assistant alleged that he had been discriminated against due to his association with a black colleague (who had previously raised an Employment Tribunal claim against Tesco, which was settled out of court). In the recent claim against Tesco, the Claimant said that his friendship with his former colleague was well known and that he was subjected to a detriment due to that friendship. He was suspended for swearing at a colleague, and he said that this evidenced inconsistency in treatment by Tesco because it had not previously suspended an employee who had threatened to punch a colleague.

The specific claims he presented to the Employment Tribunal were:

• Direct discrimination under section 13 of the Equality Act 2010.

• Harassment under section 26 of the Act (due to allegedly suffering certain acts of harassment a result of his association with his former colleague)

• Victimisation under section 27 of the Act (due to allegedly being victimised because his former colleague had also brought proceedings under the Equality Act).

In the past, UK law had not made it expressly clear that claims based on associative discrimination could be presented to an Employment Tribunal. However, in 2008 in the case of Coleman v Attridge Law and Another, the European Court of Justice ruled that under European Union law it was not necessary for an employee to be disabled in order to present a direct disability discrimination claim. Subsequently, in 2010, the UK government made it clear in the Equality Act that claims of associative discrimination could be presented for a broader range of protected characteristics than just disability in respect of direct disability and harassment claims (although there are some exceptions).

Despite the foregoing, this remains a developing area of law, and not all aspects of associative discrimination claims are apparent. For example, it is uncertain about whether it is possible to bring a claim for associative discrimination, where the claim is based on indirect discrimination. It seems clear from the Equality Act that a claim for indirect discrimination based on associative discrimination will not be allowed. However, it seems that EU law suggests the opposite, which is significant given that UK courts are obliged to give direct effect to a principle of EU law.

In the case against Tesco, the Employment Tribunal ruled on a preliminary question of whether or not to allow the claims to proceed to a final hearing. A core part of Tesco’s case was that the individual who had decided to suspend the Claimant did not even know that there was an association between the Claimant and his former colleague, which the Claimant maintained was untrue. The Tribunal had doubts regarding the Claimant’s ability to prove his case (in particular his assertion that the detriments had been suffered as a result of his association with his former colleague). Consequently, the Tribunal only allowed him to pursue his claims of direct discrimination and harassment provided that he paid a deposit (which is an indication that those claims had no reasonable prospect of success). The claim of victimisation was not allowed.

In this case, the Employment Judge did not consider that the Equality Act provided the jurisdiction for such claims to be presented (despite an earlier case, specifically Thompson v London Central Bus Company Limited which had suggested that such claims were possible). This contrast highlights the extent to which this area of law and the extent to which the boundaries of associative discrimination is still developing.

An associative discrimination claim is not the simplest type of claim to present to the Employment Tribunal. Claimants will often find it difficult to prove that they suffered a detriment due to the protected characteristic of another individual. Moreover, associative discrimination cases are not limited to claims for alleged treatment during disciplinary procedures, there are other areas where the potential for associative discrimination could be made. For example, in the Coleman case referred to above, an employee with care responsibilities might request flexible working where a refusal could amount to associative discrimination if the employee has a disabled child and can show less favourable treatment due to the disability of the child.