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Associative Discrimination (Advice For Employers)

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By law, you should not treat any member of staff or job applicant unfairly by reason of a protected characteristic, such as their age, gender, a disability, race or religion. This includes not treating them unfairly because of any association with another individual who possesses one of these, or any other, protected characteristic.

The following guide looks at the issue of what is sometimes described as associative discrimination, including common examples of this type of discrimination in the workplace, as well as how this can be avoided and how to deal with an associative discrimination complaint.

 

What is associative discrimination in the workplace?

By virtue of the Equality Act 2010, all employers are under a statutory duty not to discriminate against anyone who possesses a protected characteristic. Under the 2010 Act these characteristics can include any of the following:

  • age
  • disability
  • gender reassignment
  • marriage or civil partnership
  • pregnancy or maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

In particular, you should not discriminate against someone either because they possess one of these characteristics, or because you believe they possess one of these characteristics, otherwise known as discrimination by perception.

Equally, you should not discriminate against anyone because of the protected characteristic of another individual that the person is associated with. This is known as “discrimination by association” or “associative discrimination”. This is a form of direct discrimination and could relate to the protected characteristic of a person’s friend, spouse, partner, parent or anyone with whom they associate.

That said, associative discrimination does not apply to marriage and civil partnership, or to pregnancy and maternity. However, in the case of pregnancy and maternity, a worker treated less favourably because of association with a pregnant woman, or a woman who has recently given birth, may instead have a claim for sex discrimination.

 

How does associative discrimination arise?

For associative discrimination to arise, actual “association” between the person alleging the unfavourable treatment and the person possessing the protected characteristic does not need to be shown.

The employment tribunal will not be looking at how far there is an association between the claimant and the person with the protected characteristic, but rather whether the discrimination is by reason of that particular characteristic. In particular, section 13(1) of the Equality Act 2010 states that:

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

In the case of EBR Attridge Law LLP v Coleman [2009] UKEAT 0071/09, the mother of a disabled child alleged that her employer had treated her less favourably, and harassed her, because she was the primary carer of a disabled child. The Employment Appeal Tribunal (EAT) held that, even though she 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 his [or her] own is not of the essence” (para 16).

The EAT goes on to state:

“In practice it may be uncommon for an employee to be discriminated against on the ground of the disability of anyone with whom s/he is not in some sense “associated”, indeed closely associated, but the fact of such association is not necessary to the unlawfulness; and I should prefer to avoid language which encourages tribunals to become bogged down in discussion of what does or does not amount to an “association”, when that should not be the focus of the enquiry”.

The case of Coleman pre-dates the Equality Act 2010, the wording of which now makes it clear that associative discrimination is prohibited, although the comments made by the EAT still provides useful guidance in assessing how a tribunal is likely to approach this issue. In Coleman, the claimant was the clear victim of discrimination where her child’s disability was simply the cause of it.

It is also important to note that even though associative discrimination is not expressed directly within the Equality Act 2010, but is instead implicitly implied within the definition of discrimination, the wording of the phrase “because of a protected characteristic” clearly prohibits discrimination by association.

 

What are common examples of associative discrimination?

Associative discrimination can occur in various ways, for example, where the employee, worker or job applicant has a relationship of parent, son or daughter, partner, carer or friend of someone with a protected characteristic. Further, the association with the other person need not be a permanent one.

It can also arise in relation to various different types of conduct. In the case of Coleman, the claimant alleged the following:

  • On her return from maternity leave, her former employer refused to allow her to return to her existing job, in circumstances where the parents of non-disabled children would have been allowed to take up their former posts
  • Her former employer also refused to allow her the same flexibility as regards her working hours and the same working conditions as those of her colleagues who were parents of non-disabled children
  • Ms Coleman was described as lazy when she requested time off to care for her child, whereas parents of non-disabled children were allowed time off
  • The formal grievance which she lodged against her ill treatment was not dealt with properly and she felt constrained to withdraw it
  • Abusive and insulting comments were made about both her and her child, whereas no such comments were made when other employees had to ask for time off, or a degree of flexibility, in order to look after non-disabled children, and
  • Having occasionally arrived late at the office because of problems related to her son’s condition, she was told that she would be dismissed if she came to work late again, whilst no such threat was made in the case of other employees with non-disabled children who were late for similar reasons

The nature of the allegations in Coleman set out just some of the types of unfavourable treatment that may be construed as direct discrimination in the context of a worker by association with their disabled child.

Direct discrimination can also occur because of association with someone with a different kind of protected characteristic, and in relation to any conduct that results in a worker being treated unfairly in relation to their employment terms and conditions, pay and benefits, promotion and transfer opportunities, training and recruitment, as well as dismissal and redundancy.

By way of example, where an employer or manager treats a heterosexual worker less favourably because they have been seen socialising with someone who is gay, this could be classed as direct sexual orientation discrimination against the worker because of their association with this person.

Similarly, where an employee is refused a promotion, or suffers some other detriment, because they are in a relationship with someone of a different ethnic origin or religion, this could be construed as associative racial discrimination.

Further, associative discrimination could also occur if a worker is treated less favourably because they campaigned to help someone with a particular protected characteristic, or refused to act in a way that would disadvantage a person or people who have that characteristic.

For example, an employer who does not short-list an internal applicant for a job because the applicant, who is not disabled, has helped to set up an informal staff network for disabled workers, could amount to less favourable treatment because of disability.

 

Does associative discrimination extend to reasonable adjustments?

Under the Equality Act 2010, where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, all employers are under a duty to take reasonable steps to avoid the disadvantage. The question is whether this extends to a worker who is associated with someone who has a disability.

This issue arose in the decision in Hainsworth v Ministry of Defence [2014] EWCA Civ 763. The claimant, a civilian employee attached to the British armed forces working in Germany, asked for a transfer to the UK where there would be educational and training facilities for her daughter who had Downs Syndrome.

Having refused her request, Ms Hainsworth claimed breach of the duty to make reasonable adjustments, as her daughter was disabled. However, the Court of Appeal rejected her claim, finding that the reasonable adjustments duty only applied where the worker was disabled, not someone associated with them.

As such, although employers must take appropriate measures, where needed, to enable a person with a disability to have access to, participate in or advance in their employment, this is limited to measures only for the assistance of disabled employees, or prospective employees, of the employer in question.

That said, you must still be careful not to treat an employee associated with someone with a disability less favourably, for example, by selecting them for dismissal or redundancy simply because they are the carers of a disabled person.

 

How can associative discrimination be avoided in the workplace?

Although the issue of associative discrimination is quite rare, it does happen, and potentially represents a growing area of risk for employers, especially since there are relatively few examples of how the courts will deal with different types of conduct in the context of each of the relevant protected characteristics.

It has to be said, from the claimant’s perspective, complaints based upon associative discrimination are not the easiest to bring before the employment tribunal, where it will often be difficult to evidence that any unfavourable treatment is caused by the protected characteristic of another individual.

In the recent preliminary hearing decision of Taylor v Tesco Stores Ltd [2019] before the Scottish employment tribunal, the judge found that the complaint of associative racial discrimination was found to have “little reasonable prospect of success” based on the lack of evidence that the association of a white employee with an Afro-Caribbean co-worker had led to him being suspended.

However, employers should never seek to rely on any potential evidential difficulties that a claimant may face before the employment tribunal, instead taking a more proactive approach to prevent discrimination within the workplace from arising in the first place, both through adequate training and awareness, and to always address any allegations of discrimination with diligence and fairness.

It is especially important to remember that whilst a claim for associative discrimination requires the claimant first to establish facts that amount to a prima facie case, section 136 of the Equality Act 2010 specifically provides that, once there is a clear basis upon which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof shifts to the employer to prove a non-discriminatory explanation.

As such, it is vital for employers to ensure that they are fully aware of how allegations of associative discrimination can arise, and that those responsible for managing their workforce understand the concept of discrimination by association and are trained in this area of risk.

It is also important to ensure that you implement clear policies on dealing with discrimination in the workplace, with adequate grievance procedures to allow workers to lodge a formal complaint when allegations of this kind arise.

 

How should an associative discrimination complaint be handled?

In the event that an employee makes a complaint that s/he is being treated less favourably by reason of their association with someone with a protected characteristic, you should, as with any other allegation of discrimination, investigate the matter fully and promptly.

Although claims based upon associative discrimination are not the easiest for an employee to prove before an employment tribunal, especially in proving that any detriment they suffered is caused by the protected characteristic of another individual, you should still explore exactly what has happened and whether there is any merit in the allegations made.

By having in place a fair and easily accessible grievance procedure, and by dealing with the matter sensitively and professionally, this will provide both you and the employee with the chance to resolve the matter without recourse to legal proceedings, and to restore a positive working relationship for the future.

However, if you do find yourself facing a complaint of associative discrimination, you should always seek expert legal advice from an employment law specialist at the earliest possible opportunity. In this way, you can help to protect your organisation from any claim for unlawful discrimination before a tribunal.

 

Need assistance?

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination, from guidance on how to minimise the legal risk of associative discrimination issues and how to deal with specific complaints. Working closely with our specialists in HR, we can offer a full support service from staff training, through to developing an organisational policy to defending any claims that may arise. For help and advice, speak to our experts.

 

Last updated: 6 May 2020

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