Associative discrimination: Four scenarios for employers to look out for

Author: Stephen Simpson

The wording of the Equality Act 2010 means that employers can be liable for "associative discrimination", which is sometimes referred to as "discrimination by association". We explain the concept and set out four example scenarios that HR professionals, line managers and employees should avoid because they might lead to claims of associative discrimination.

Associative discrimination: the concept

Under the Equality Act 2010, discrimination against an individual because of an association with another individual who has a protected characteristic can be unlawful.

This is because the Equality Act is worded widely enough so that a person can bring a discrimination claim even if they do not have the protected characteristic in question, as long as they are associated with someone who does have that protected characteristic (see extract on the right).

However, the wording of the Equality Act places some limits on the concept of "discrimination by association". Under the Act, associative discrimination claims are limited to instances of direct discrimination and harassment.

In addition, the principle of associative discrimination does not cover two protected characteristics: pregnancy and maternity, and marriage and civil partnership. However, most potential claims related to marriage, pregnancy and maternity are likely to come under the sex discrimination provisions of the Equality Act. Similarly, most potential claims related to civil partnerships are likely to be covered by sexual orientation discrimination.

These four workplace scenarios could lead to claims of this nature.

Example 1: the disabled child

Scenario

Olivia is the primary carer for her disabled son. Her son was born severely disabled and requires specialised care around the clock. After she returns to work from maternity leave, her manager turns down her request to start work at 10am every morning, despite others in her team previously being granted similar flexible working arrangements.

Olivia frequently struggles to get to work on time as the carer she employs to look after her son during the day cannot start until 9am. Olivia resigns after her manager threatens her with disciplinary action, telling her that her frequent lateness is because she is "disorganised and lazy".

Potential claim

This employer is open to a claim similar to the one brought in Coleman v Attridge Law and another [2008] IRLR 722 ECJ, which is the seminal disability discrimination case that ultimately resulted in "discrimination by association" being introduced into the Equality Act 2010.

Olivia could bring a claim of direct disability discrimination if she can show that the rejection of her flexible working request is less favourable treatment because her son is disabled. Her comparator could be an employee with a non-disabled child who has been granted similar flexible working arrangements to those she sought.

Olivia could also bring claims for:

• harassment, arguing that her manager's comments constitute unwanted conduct related to disability that have the purpose or effect of violating the victim's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her; and
• constructive dismissal, on the basis that her manager's comments breach the implied term of "mutual trust and confidence" between her and the employer.

Example 2: the ill partner

Scenario

Harry, a salesperson with 18 months' service, has met every sales target so far and has received "good" or "excellent" ratings for all key areas during his appraisals.

Harry's wife is diagnosed with cancer and hospitalised towards the end of the month, meaning that he regularly has to leave work at 5pm. The workplace culture is that salespeople are expected to stay late on the last few days of each month to maximise sales and to ensure that monthly sales targets are met. Harry's line manager is distinctly unimpressed that he is leaving at 5pm, and decides that Harry's "heart isn't in the business".

The manager calls Harry into a meeting and dismisses him on the basis of a "lack of commitment". Harry asks if he can appeal against his dismissal, but his line manager tells him that the employer does not have to follow a capability procedure because he has less than two years' service. The manager does not consult with the HR department in advance of the decision to dismiss and does not keep a record of the meeting.

Potential claim

Harry could bring a claim for direct associative disability discrimination in an employment tribunal. Under, the Equality Act 2010, cancer is deemed to be a disability from the point of diagnosis. The timing of Harry's dismissal, his previous good performance, and the sudden change in his manager's attitude towards him would allow him to shift the burden of proof to the employer for it to provide a non-discriminatory explanation for his treatment.

Although Harry cannot claim unfair dismissal because he had less than two years' service when he was dismissed, the employer's failure to follow any sort of procedure would be strong evidence of a discriminatory motive for dismissing him. At the very least, the employment tribunal would expect the line manager to present Harry with details of where he has underperformed, commence a capability procedure to allow him to rectify any perceived performance issues, and keep a record of what steps have been taken (including minutes of performance improvement meetings).

Example 3: the gay pride parade

Scenario

John is a heterosexual employee who volunteers for stewarding duties every summer at the "Pride in London" parade. He moves jobs and his new employer encourages staff to share charity and volunteering activities that they do outside work via the organisation's intranet.

John is happy to share photos on the intranet of him undertaking stewarding duties during the parade, including a group photo with a number of LGBT attendees. While colleagues at John's previous employer were supportive of his volunteer work at "Pride in London", he is surprised and upset when he overhears two colleagues in a communal area at his new place of work making homophobic remarks about the parade and his part in it.

Potential claim

Although John is heterosexual and the remarks were not made directly to him, he could bring a claim for sexual orientation harassment in an employment tribunal. John does not have to share the protected characteristic of sexual orientation, as long as the comments are related to someone who has that protected characteristic.

All that is needed is that there is unwanted conduct related to sexual orientation that has the purpose or effect of violating the victim's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

In Lee v Ashers Baking Company Ltd and others [2018] IRLR 1116 SC, the Supreme Court made it clear that discriminating against someone because they associate with gay people can be unlawful. However, the Supreme Court suggested that there would need to be an association with particular individuals, rather than simply a general association with the gay community. For John, that would be the LGBT attendees with whom he was pictured.

Example 4: the employee's fiancée

Scenario

Joan, who is in line for a promotion at work, is getting married. Before going on leave to get married, she shows a picture of her fiancée, who is black, to her line manager.

On Joan's return from leave, she notices a change in attitude from her manager towards her. For example, she notices that her manager has started excluding her from important meetings and communications. Her manager subsequently promotes someone else instead of her.

Potential claim

Joan may be able to claim direct associative race discrimination. While her line manager has not said anything specifically to her about her black fiancée, the timing of her exclusion from important meetings and communications may lead to an inference that she has been less favourably treated because of her association with a black person.