Discrimination by association: opening Pandora’s Box?
Mark Landon explains what discrimination by association is, how it might happen and what steps employers should take to safeguard against it.
What is discrimination by association?
Discrimination by association describes the situation where an individual can bring a discrimination claim based not on a characteristic of their own but on a characteristic of another person.
In the past, this concept only applied to direct discrimination and harassment.
However, the European Court of Justice has now given a decision that suggests that discrimination by association should also apply in the case of indirect discrimination; a decision which could have far-reaching ramifications for employers.
Discrimination and the Equality Act
The Equality Act establishes nine protected characteristics in respect of which it is unlawful to discriminate (such as sex, race, disability, religion and age), and then sets out the various forms of outlawed discrimination — some of which apply to all the protected characteristics (direct discrimination, indirect discrimination, harassment and victimisation) whilst some only apply to certain protected characteristics (such as the disability-related forms of discrimination such as the duty to make reasonable adjustments).
Discrimination by association
Prior to the Equality Act, an individual was not generally protected against discrimination unless he or she personally had the protected characteristic in question.
The only two exceptions to this were the protection against victimisation (in which someone without the relevant protected characteristic was protected against victimisation for supporting someone with it) and disability, whereby case law had established protection against the direct discrimination or harassment of a non-disabled person by reason of their association with someone who was disabled (e.g. teasing a parent about his/her disabled child).
When the Equality Act came into force in October 2010, Parliament implemented protection against direct discrimination and harassment by association across all the protected characteristics (with the exception of marriage and civil partnership, and pregnancy and maternity).
Given the nature of direct discrimination and harassment, it’s understandable that protection should be extended to cover associative discrimination.
Experience showed that direct discrimination and harassment were often suffered not just by those who personally possessed the relevant protected characteristic, but also by those who associated with them. Therefore, Parliament used the Equality Act to outlaw direct discrimination and harassment by association.
How might discrimination by association happen?
The statutory Code of Practice, which was published in support of the Equality Act, explained that discrimination by association can occur in various ways, for example where the worker has a relationship of parent, son/daughter, partner, carer or friend of someone with a protected characteristic, and provided three examples:
- A lone father caring for a disabled son has to take time off work whenever his son is sick or has medical appointments. The employer appears to resent the fact that the worker needs to care for his son and eventually dismisses him.
The dismissal may amount to direct disability discrimination against the worker by association with his disabled son;
- A manager treats a worker (who is heterosexual) less favourably because she has been seen out with a person who is gay.
This could be direct sexual orientation discrimination against the worker because of her association with this person; and
- A worker is treated less favourably because he 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 (or whom the employer believes to have) the characteristic.
This again could be direct discrimination by association.
Over the following five years it seemed relatively settled that the concept of discrimination by association was limited to direct discrimination and harassment.
New case law
However, in the recent case of CHEZ Razpredelenie Bulgaria, the European Court of Justice held that a person may claim indirect discrimination by association under the European Directive which governs race discrimination.
Although the decision relates to the supply of goods and services, UK courts have an obligation to give effect to a principle of EU law such as non-discrimination, even if it means dis-applying UK legislation.
Indirect discrimination is defined in the Equality Act. This form of discrimination arises where an employer unjustifiably applies an apparently neutral provision, criterion or practice (PCP) to everyone (e.g. all job applicants or existing employees) but the application of the PCP in question puts, or would put, a group of people with a shared protected characteristic at a particular disadvantage.
The individual must also show that the PCP puts, or would put, them at such a disadvantage.
A traditional example is where an employer requires a woman with childcare responsibilities to work full-time, this requirement has a disproportionate impact on women, since women in society as a whole bear a greater part of domestic and childcare responsibilities than men and are more likely to want (or need) to work part-time.
Unless the employer can objectively justify the need for a full-time worker to do the job, the requirement would be indirectly discriminatory.
The ECJ’s judgment in the Bulgaria case suggests that the Equality Act is drafted more restrictively than the equivalent provision in the European law.
Whilst under the Equality Act a claim for indirect discrimination only arises where the PCP gives rise to a group disadvantage based on a protected characteristic that the claimant shares, the ECJ has interpreted European Law as meaning that it is sufficient to show that the PCP gives rise to a group disadvantage based on a protected characteristic if a person not possessing the relevant characteristic is "suffering alongside" the protected group as a result of the PCP then that individual may claim to be the victim of indirect discrimination.
What does this mean for me?
Although this decision considered race discrimination, it is likely that the key points it makes will also apply to discrimination based on other protected characteristics.
If the concept of associative discrimination is now to be extended to indirect discrimination then, potentially, a far broader range of claimants may start to bring indirect discrimination claims.
For example, a man making a request to work part-time for childcare reasons, who would struggle to establish that he belonged to a disadvantaged group (it being commonly accepted that a requirement to work full time disadvantages women more than men due to their greater role in childcare), might now bring his claim as a person suffering alongside the disadvantaged female group.
Whilst only time will tell how far UK courts will tolerate 'creative' claims for indirect discrimination by association, it does seem that Pandora’s box has now been opened.
It's also interesting to compare this development with the clear and definitive judgment of the Court of Appeal in Hainsworth v Ministry of Defence in which it was determined that the employer's duty to make reasonable adjustments is limited to employees with disabilities and does not extend to employees who care for those with disabilities.
If non-disabled people can now seek to make claims for indirect disability discrimination by association, will the Court of Appeal’s decision in Hainsworth be challenged or circumvented?
As always with discrimination law, watch this space…
If you are concerned about the implications of this judgment for your business or would like to know more please do not hesitate to contact our employment law solicitors.