It is unlawful to treat someone unfairly in the workplace because they possess a protected characteristic, such as age, disability, gender reassignment, sexual orientation, race or religion, including if they associate with someone who possesses a particular characteristic.
The following practical guide for employers on associative discrimination looks at what this is and when protection from this type of discrimination arises, including common examples, plus the employer’s obligations around associative discrimination in the workplace.
We also look at how to deal with associative discrimination complaints, together with some of the risks of failing to handle these matters effectively, and the measures that can be put in place by employers to help prevent all forms of discrimination at work.
What is associative discrimination in the workplace?
Under the Equality Act 2010, employers are under a statutory duty not to treat someone less favourably than they would treat others during either the recruitment process or employment lifecycle by reason of a protected characteristic. Under the 2010 Act these characteristics can include age; disability; gender reassignment; marriage or civil partnership; pregnancy or maternity; race; religion or belief; sex; or sexual orientation.
By law, an employer must therefore not discriminate against either a job applicant or existing worker because they possess any one of these characteristics, or because they are thought to possess one of these characteristics, also known as perceptive discrimination.
However, someone can also be directly discriminated against in circumstances where they do not themselves possess a particular protected characteristic, but they are associated with another person who does. Described as associative discrimination, this will typically arise where a person is treated less favourably by an employer because a spouse, partner, child, parent, friend or peer possesses a protected characteristic under the 2010 Act.
When does protection from associative discrimination arise?
Under the provisions of the Equality Act, an employer will directly discriminate against a job applicant or worker if they treat that individual less favourably than they treat or would treat anyone else at work “because of a protected characteristic”. As such, even though associative discrimination is not expressly defined within the Act, it is implicit within the widely drafted statutory definition of direct discrimination, where the expression “because of a protected characteristic” clearly prohibits discrimination by association.
Additionally, for associative discrimination to arise, a close association between the person alleging the unfavourable treatment and the person possessing the protected characteristic does not necessarily need to be shown. If a complaint of unlawful discrimination is lodged by a job applicant or worker before an employment tribunal, the tribunal ought not be overly concerned with the nature or extent of an association between the claimant and the person with the protected characteristic, but whether the alleged discrimination is by reason of that particular characteristic, although there are some grey areas here.
There are also various types of unfavourable treatment in the workplace that may be construed as associative discrimination, from the recruitment process to treating someone unfairly in relation to their pay and benefits; any other employment terms and conditions; any promotion, transfer and training opportunities; as well as dismissal and redundancy.
If an employee is dismissed or made redundant because of the protected characteristic of another individual they are associated with, this can amount to both unlawful discrimination and automatically unfair dismissal. Equally, if someone is harassed at work because of the protected characteristic of someone they associate with, they will again be afforded protection from discrimination. Harassment is where someone at work is subjected to unwanted conduct linked to a protected characteristic that violates that person’s dignity or creates an offensive environment for them. It may even be possible to bring a claim for victimisation by association, where victimisation refers to the act of subjecting someone to a detriment because they have complained about discrimination or harassment. In this context, where an employee is victimised, the employee can claim even when the protected act is carried out by another person, provided that they are victimised because of that act.
Examples of associative discrimination
Associative discrimination, as a form of direct discrimination, is not as common in workplaces as others forms of discrimination, but it does still happen. For example, in EBR Attridge Law LLP v Coleman [2009] UKEAT 0071/09, the Employment Appeal Tribunal (EAT) found that unlawful discrimination was possible against the mother of a disabled child based on unfavourable treatment and harassment as the primary carer of that child.
On the facts of Coleman, the allegations of discriminatory treatment before the EAT included a refusal by the employer to allow the claimant to return to her existing job role after coming back from maternity leave in circumstances where parents of non-disabled children would have been permitted to do so. The allegations also included a refusal to give the claimant the same flexible working arrangements as those of co-workers with non-disabled children, as well as being called lazy when seeking to take time off work to care for her son and an allegation of using her child to manipulate her working conditions.
The EAT held that, even though Ms Coleman was not herself disabled, she could claim direct discrimination and harassment. In particular, it was stated that: “What matters is that the putative victim has suffered adverse treatment on a proscribed ‘ground’, namely disability, and the fact that the disability is not [her] own is not of the essence” Even though the case of Coleman pre-dates the Equality Act 2010, construing instead the statutory provisions of the Disability Discrimination Act 1995, the guidance from the EAT still provides a useful indication of how these types of cases are likely to be analysed by a tribunal. In Coleman, the claimant was the victim of associative discrimination by reason of her child’s disability.
Putting this scenario into a slightly different context, another example of associative discrimination could be where a well-qualified candidate for a position, who has already made it through the recruitment process with relative ease, is turned down for a role having mentioned they have a disabled daughter. Any assumption made by the hiring manager that this candidate may need more time off work to care for their child would amount to disability discrimination by reason of association. A similar scenario would also arise when caring for an ageing parent, such as where a worker who is often late coming into work or needs to leave early to take their elderly father to medical appointments is not given the same leniency and flexibility as their co-workers with young children.
However, associative discrimination can just as easily occur in relation to other protected characteristics. This could be where, for example, an employee is refused a promotion or training, or suffers some other detriment, because they are in a relationship with someone of a different ethnic origin. This could amount to associative discrimination by reason of race or religion. Equally, if a heterosexual internal applicant is not short-listed for a job because they have helped to set up an informal staff network for gay and lesbian workers, this could amount to less favourable treatment because of sexual orientation.
Employer obligations
As with any form of direct discrimination, employers can be held accountable under the Equality Act for their own associative discriminatory conduct. This includes anyone acting on their behalf, where anything done by another person in the course of an individual’s employment must be treated as also done by the employer. This wide definition of “employment” for the purposes of discrimination claims means that the employer is liable for anything done by its agent, on their authority, whether within their knowledge or not.
An employer can also be held vicariously liable for the discriminatory conduct of other members of staff, not just HR personnel and management. For example, where someone is bullied at work because they have been seen socialising with someone who is transgender, the employer could be guilty of harassment by reason of gender reassignment, even if not directly responsible for any unwanted conduct. In these circumstances, an employer aware of the problem would be under a duty to take all reasonable steps to prevent any unwanted conduct, where any failure to do so would potentially amount to a breach of the 2010 Act.
Employer risks
Even though allegations of associative discrimination are relatively rare in the workplace, if a complaint is made that someone is being treated less favourably by reason of their association with another person who possesses a protected characteristic, as with any other allegation of unlawful discrimination, this gives rise to a risk of tribunal proceedings.
Equally, even though allegations of associative discrimination claims can be difficult for a complainant to prove, especially in demonstrating that any detriment suffered is caused by the protected characteristic of someone else, defending litigation can be costly and time-consuming. Once a claimant has established sufficient facts before the tribunal that any unfavourable treatment was as a direct result of another person’s protected characteristic, the burden of proof also shifts to the employer to prove a non-discriminatory explanation.
In addition to the risk of tribunal proceedings, other adverse consequences that can arise from discrimination in the workplace, by association or otherwise, include irreparable damage to any ongoing working relationship, reduced employee engagement, increased employee absenteeism and even the loss of a valuable member of staff if they resign because of their treatment. This means that employers should be cautious of falling back on any evidential difficulties that a claimant may face. Instead, they should fully and promptly explore what is being alleged and, if there is any potential merit to the allegations made by a member of staff, take steps to rectify any unfavourable treatment or unwanted conduct.
How should associative discrimination complaints be handled?
All employers should have in place a written grievance procedure, where staff should be encouraged to put any complaint of associative discrimination in writing. In this way, the employer can create a paper trail of what is being alleged and their response to these allegations. The employer should also ensure that they follow any written grievance procedure, documenting their decision-making throughout the investigative process.
Whenever a grievance procedure is being followed, employers must deal with the matter fully and fairly in accordance with the guidance in the ACAS Code of Practice, including:
- dealing with issues promptly and not unreasonably delaying meetings, decisions or confirmation of those decisions
- acting consistently
- carrying out any necessary investigations to establish the facts of the case
- giving staff an opportunity to put their case in response before any decisions are made
- allowing staff to be accompanied at any formal grievance meeting
- allow staff to appeal against any formal grievance decision made.
If a grievance is not upheld, this does not automatically equate to tribunal proceedings or a finding of associative discrimination. However, by having a paper trail of the decision-making process, this will help to discharge the burden of proof on the employer to provide a non-discriminatory explanation in relation to the matter complained of, if needed.
How can associative discrimination be avoided in the workplace?
Despite the difficulties in proving associative discrimination claims, employers should seek to deal with any allegations fully and fairly, pre-empting any risk of tribunal proceedings.
In the context of all types of discrimination at work, employers should also take a proactive approach to help prevent this from arising in the first place. This could include putting in place a well-written and clear equality policy to help reduce incidents of discriminatory actions and unwanted conduct at work, together with a review of any grievance procedure to ensure that this is fair and easily accessible for anyone wanting to make a complaint.
The provision of training to help increase awareness and understanding across the workforce is also key to avoiding associative discrimination, including specific training for HR and management in different areas of risk. This should cover the meaning of the different types of discrimination in the workplace and how these can arise in practice.
Need assistance?
For specialist advice on any aspect of discrimination in the workplace, from dealing with complaints to implementing anti-discrimination policies and for help with fostering a diverse and inclusive culture, contact us.
Associative discrimination FAQs
What is discrimination on the basis of association?
Discrimination on the basis of association, also known as associative discrimination, is a type of direct discrimination where either a job applicant or worker is treated unfairly in the workplace because of the protected characteristic of someone they associate with.
What is an example of mental health discrimination?
An example of mental health discrimination in the context of associative discrimination is where a worker who has a husband with bipolar disorder is refused a promotion which would require her to attend various works’ social events with her spouse.
Can you discriminate against anxiety?
Acute anxiety disorders can be considered a disability, where employers must not treat disabled employees unfairly, otherwise risk unlawful discrimination. Employers must also make reasonable adjustments at work to help reduce any disadvantage suffered by someone because of their anxiety.
What is discrimination by association in health and social care?
In a health and social care context, discrimination by association could be where a worker caring for an ageing parent is not afforded the leniency at work, or flexibility in working arrangements, as any co-workers caring for young children.
Last updated: 5 March 2024
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals