Legal

Don’t forget about discrimination by association

13 Dec 2019 By Ben Stepney

Ben Stepney offers advice on avoiding claims of unfavourable treatment arising from an employee’s relationship with someone with a protected characteristic

A preliminary employment tribunal (ET) hearing in Scotland has allowed a claim of race discrimination and harassment to continue, although the judge believes it has little reasonable prospect of success. The claimant, Mr Taylor, is a white British male, but he is not claiming that he was discriminated against on this basis. Instead, his discrimination claim is based on his association with a friend of Afro-Caribbean descent.

In support of his claim, he alleges another employee was handled much more leniently even though they had behaved much worse, whereas he was suspended over an allegation of swearing at a colleague in front of a customer. 

His harassment claim describes managers intimidating him, including scrutinising and timing his toilet breaks. This led Taylor to contemplate avoiding going to the toilet and feeling humiliated and belittled. 

The basis of both claims is that the cause of this treatment is his “friendship and close association with [his] colleague who has a protected characteristic, namely that of race”. This is known as discrimination by association and arises where someone is treated unfavourably on the basis of someone else’s protected characteristic. The judge in Taylor’s case seems dubious of his particular claim, but associative discrimination itself is well-recognised. 

A leading case in this area concerned an employee who was found to have been directly discriminated against and harassed by her employer because of her son’s disability. She could claim disability discrimination, even though she was not disabled. 

The statutory code of practice, which gives guidance on duties under the Equality Act 2010, provides some examples of how associative discrimination may occur:

  • A lone parent caring for a disabled child has to take time off for appointments or when the child is sick. Their employer resents this and dismisses them;
  • A manager treats a heterosexual worker less favourably because they have been seen out with a person who is gay.

These are all unfortunately quite easy to imagine and so discrimination by association is certainly something employers should be aware of. The examples relate to direct discrimination, but harassment can also be by association. Consider workplace ‘banter’ and the impact it may have on employees who may not themselves have the protected characteristic that is being belittled (e.g., a disability or a nationality) but could take offence because of their association with friends or family members who do. 

Currently, the duty to make reasonable adjustments for a disabled employee does not extend to employees associated with a disabled person. Despite this, an employer may still wish to consider making adjustments for employees with disabled relatives to maintain positive employee relations.

Returning to the Taylor case, the judge’s belief that the claim has little reasonable prospect is down to the requirement for Taylor to demonstrate a causal link between his treatment and the protected characteristic. The judge does not dispute that Taylor suffered unwanted treatment, but he needs to show this was because of his friend’s protected characteristic. The employer in this case claims they did not know of the friendship. With an email, text or witness as evidence, the prospects of this claim could significantly improve.

Many people are unaware of discrimination by association. Employers should review workplace policies and management training and consider whether to make specific reference to this. It should also be included in diversity training; example scenarios can be very helpful in showing employees how such claims can arise.

Ben Stepney is a senior associate in the employment team at Thomson Snell & Passmore

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