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Victimisation “By Association”
Employees and workers are able to claim that they have been subjected to victimisation if they can show that they have suffered a detriment as a result of them having carried out a “protected act”. These “protected acts” include:
- Any proceedings brought under the Equality Act 2010 (the Act);
- The giving of evidence in connection with proceedings brought under the Act;
- Doing anything else in connection with proceedings under the Act;
- Making an allegation that somebody has contravened the Act.
In a recent case of Thompson v London Central Bus Company Ltd, the Employment Appeals Tribunal (EAT) has held that a claim of victimisation ‘by association’ should not have been struck out by an Employment Tribunal.
The Claimant in this case was a bus driver, and was dismissed by his employer for having given his high-visibility vest to another employee. He was reinstated following an appeal, but he claimed that the decision to take action against him was an act of victimisation, which related to a protected act carried out by another person, and not by himself.
The Claimant argued that he had informed his manager about a conversation he had overheard, in which other employees accused the company of having breached the Act. He then claimed that, following this discussion, he was “associated” with those employees, and their protected act, by his manager, and this was the reason for his treatment.
The Tribunal had accepted that the Claimant may claim victimisation based on the protected act carried out by a third party. However, it also decided that the Claimant had to have a particular degree of association if the claim were to succeed. The Claimant’s loose association to the other employees (member of the same trade union) was not considered to have been strong enough. The claim was struck out by the Employment Tribunal, as it was not considered to have reasonable prospects of success.
The EAT, however, made it clear that ‘associative’ discrimination should not depend on the particular kind of relationship between the parties, but on whether, the protected act of a third party was, in fact part of the reason for the employer’s treatment of the employee.
In this case, Mr. Thompson was a member of the same trade union as the employees who had carried out the “protected act”. It was considered to have been entirely possible that an employee’s membership of a trade union, which had, for example, protested about protected acts, might cause an employer to treat the employee in a detrimental way.
Employers should always be aware of discrimination
Recently, it has become clear that the Employment Tribunal is prepared to consider claims for “discrimination by association” much more favourably.
Employees can potentially pursue claims for direct discrimination, indirect discrimination, and victimisation even if they do not have a protected characteristic, such as disability, sex, or race, but another person does have such a characteristic. Employees will still need to show some connection to a person with a protected characteristic, and demonstrate that, because of this connection, they have been treated unfairly, or subjected to a detriment.
Employers should now be vary aware of the possibility that, whilst it may not appear that a particular employee could claim that they have been discriminated against, the reality is never so clear cut, and it is important to make sure that all employees are treated equally in order to avoid this situation in the future.
Employers should ensure that all of their staff are aware of their obligations in respect of equality and diversity, and if in doubt, legal advice should be sought before taking any action.
Oliver McCann, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor