Employers have a responsibility to make sure that all their employees are treated equally and fairly, according to employment law. To make sure that all staff are treated fairly and not discriminated against it’s important to either make sure you, as the employer, have a good handle on HR best practice guidelines, or that you seek the advice of an employment solicitor or HR professional. That way, you can produce water-tight policies and procedures to benefit your employees and the business.
This article will explore the issue of discrimination by association in more detail, helping you to familiarise yourself with this issue, and how to differentiate between direct and associative discrimination.
- What is discrimination by association?
- What legislation do you need to be aware of as an employer?
- Important case law in relation to discrimination by association
- What practical steps can you take to avoid the possibility of discrimination by association?
What is discrimination by association?
Discrimination by association (or associative discrimination) occurs when a person is treated less favourably because they are linked or associated with a protected characteristic.
What is a protected characteristic?
A protected characteristic refers to an aspect that makes up part of a person’s identity. Under the Equality Act, there are nine protected characteristics, which include:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual Orientation
The person does not have the protected characteristic, but they are treated less favourably than others because of a protected characteristic of a friend, spouse, partner, parent, or another person that they are associated with.
What legislation do you need to be aware of as an employer?
One of the leading cases on associative discrimination (Coleman v Attridge Law and Law C-303/06 (‘Coleman’)) was decided under the Disability Discrimination Act 1995 (DDA), and confirmed on appeal to the ECJ under the EC Equal Treatment Framework Directive (2000/78/EC).
The DDA has now been superseded by the Equality Act 2010, which includes:
- Direct discrimination because of someone else’s disability, or harassment related to someone else’s disability.
- Victimisation by association when being punished for a ‘protected act’, such as claiming reasonable adjustments even if someone else did the protected act and there could possibly be a claim for indirect discrimination by association.
However, to claim discrimination related to a reasonable adjustment, the claimant must have the disability. It’s also likely that they must have a disability to claim discrimination related to disability.
Important case law in relation to discrimination by association
In the case of Coleman mentioned above, the EU court held that a mother of a disabled child was able to claim direct discrimination when her employer treated her less favourably and harassed her because of her child’sdisability, even though she was not disabled herself.
In deciding this case the EU Court made clear that the focus should be on whether disability was the reason for the discrimination (or, whether the harassment is related to the disability) rather than becoming distracted by discussing what does or does not amount to an ‘association’ and how close the relationship has to be for an association to exist.
Before the Equality Act 2010, tribunals held that the employment provisions of the DDA should follow this EU Court decision relating to discrimination by association, but the Equality Act 2010 now makes this illegal anyway. Direct discrimination and harassment by association is largely associated with employment law, but it also relates to other areas such as provision of services and education.
Hainsworth v Ministry of Defence
As stated above, reasonable adjustments are not required because of associationwith someone who has a protected characteristic unless the claimant shares that protected characteristic. This was confirmed in the case of Hainsworth v Ministry of Defence in 2014 when a worker asked to move from an army base in Germany, to one in the UK where there would be education and training that could cater for her daughter, who had Downs syndrome.
When the army refused, the Court of Appeal rejected the claim for associative discrimination due to the lack of ‘reasonable adjustment’ to relocate her, as the duty to provide reasonable adjustments only applies when the worker is disabled, not someone associated with them. The Supreme Court has refused to refer this to the European Court of Justice (ECJ) as Coleman already made the EU position clear on this matter.
Thomson v London Central Bus
In this case, the claimant argued that action taken against him by the employer was really because of complaints about racism made by other members of his union. So, this was victimisation by association, because of a protected act by someone else associated with him.
The ECJ rules that this was covered by the Equality Act 2010 as the key issue was not how far there was some association but more to do with whether the claimant was subjected to a detriment because of the protected act.
CHEZ v Komisia za zashtita ot diskriminattsia
In CHEZ v Komisia za zashtita ot diskriminattsia the ECJ agreed that there was a valid claim for direct or indirect discrimination by association against a woman when an electricity company placed electricity meters too high up to read in districts inhabited mainly by persons of Roma origin. This was notwithstanding that the claimant was not Roma herself but lived in such a district.
It must be a person that is discriminated against rather than a message in order to succeed in a discrimination by association claim.
Lee v Ashers Baking
In this case, the Supreme Court held that rejecting a message on a cake saying ‘support gay marriage’ because the baker’s religious belief did not allow for this, was not an objection or discrimination against a particular person only to promote a particular message and so was not discrimination by association. The Supreme Court said it is not enough that the reason for the less favourable treatment had something to do with the sexual orientation of some people.
McCorry and Others as the committee of the Ardoyne Association v McKeith
This was not the case in McCorry and Others as the committee of the Ardoyne Association v McKeith where the claimant was made redundant and it was ruled by the tribunal that she was selected for redundancy because management took the view that her place was at home with her disabled daughter instead of a friends taking care of her daughter for her, which was direct discrimination by association.
Perrot v Department for Work and Pensions
In Perrot v Department for Work and Pensions, a claim for direct discrimination by association failed, because holiday entitlement did not accrue during special unpaid leave to care for the claimant’s disabled sister, but neither would it accrue for special unpaid leave for any other reason. Therefore, there was no unfavourable treatment because of the claimant’s daughter’s disability.
Where the claimant has been absent, if the employer would treat someone in the same way who was absent to the same extent for a reason not involving a disabled person, there is not likely to be a claim for direct discrimination by association.
What practical steps can you take to avoid the possibility of discrimination by association?
As many employees prefer to keep their home and family life private, what can seem to be innocuous workplace banter, could impact employees more than others realise. If an employee does not have a protected characteristic themselves, it is difficult to establish whether a comment or action will cause offence if you are not aware of their other personal circumstances and protected characteristics of those they are associated with, yet as seen above this could give rise to a claim for discrimination by association.
To eradicate or at least minimise discrimination in the workplace you should ensure that all employees (not just managers and HR) are trained and discrimination by association is covered. All employees should be fully aware of the business’ anti-discrimination policies and their contents, which should be thorough and up to date. If you require any assistance in reviewing or drafting an equality policy, bullying or harassment policies, or want advice about diversity training, please contact our specialist employment solicitors.