The principle of associative discrimination has long been embedded within the scope of direct discrimination, but this year saw it extended to indirect discrimination following the ECJ’s decision in CHEZ Razpredelenie Bulgaria. But does the law also protect against associative victimisation? The EAT’s ruling in Thompson v London Central Bus Companyimplies that it does.

Thompson (T) was dismissed on the ground that he had given his high visibility vest to another employee. His appeal against was successful and he was reinstated. T had presented a claim for unfair dismissal and victimisation. The unfair dismissal claim fell by the wayside when he was reinstated, but the victimisation claim under S.27 of the Equality Act 2010 (EA 2010) remained.  Victimisation occurs where a person is subjected to a detriment because he or she does a ‘protected act’, or it is believed that he or she has done, or may do, a ‘protected act’, e.g. bringing a discrimination claim against the employer, alleging a discriminatory act has been committed, etc..

It was not T’s case that he had himself committed a protected act. His case was that he was associated in the mind of the employer with others who had committed protected acts in the past, i.e. associative victimisation.  T claimed that he had reminded a manager, Goodger, of a conversation he had overhead in the past which alleged that there had been acts of racial discrimination which could be linked to an existing manager. T argued that the disciplinary allegations relating to the high-visibility vest were the consequence.

At a preliminary hearing, an employment judge decided that a claim of victimisation could rely on the acts of others.  She held that section 27(1)(a) EA 2010, even though it states that the Claimant does a protected act, or, the employer believes the Claimant has done, or may do, a protected act, has to be read as providing “because of a protected act” in order to ensure compliance with EU obligations. However, at a further preliminary hearing, a different judge decided to strike out the claim. In his view, awareness of the contents of a conversation subsequently repeated cannot, without more, amount to association for the purpose of the concept of associative victimisation. Any link between T and the people who were the subject of the conversation was so weak that S.27 could not apply.

The EAT noted that it was not in dispute that there could in principle be a claim of associative victimisation. The EAT then went on to rule that the judge had erred in striking out the claim. The principal reason for striking out – the ‘weak’ links between T and the individuals who did the protected acts – was not open to the judge without hearing evidence as to what kind of association might suffice for the purposes of S.27. Furthermore, the question was whether T’s treatment was by reason of the protected acts done by others. The issue is not whether there is in existence a relationship of some particular kind but whether in the mind of the discriminator the protected act of a third party was part of the reason for the treatment of the employee.

The EAT did not make any comment on the correctness or otherwise of the first judge’s decision that S.27 EA 2010 should be read so as to include any protected act rather than only protected acts made by the Claimant. By implication, therefore, this case proceeds on the basis that a claim for associative victimisation is possible. If this aspect of the case remains unchallenged, then it represents a major shift in discrimination law.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.