Associative Discrimination and Equality Act

Associative discrimination is the act of discriminating against an individual because of an association with another person who has a protected characteristic under the Equality Act 2010. The individual who brings an employment tribunal claim would not have the protected characteristic him or herself. A protected characteristic is a trait that the law has determined should not a basis for employment decisions, the equality Act 2010 lists protected characteristics as:

• Age;
• Disability;
• Gender Reassignment;
• Marriage and Civil Partnerships;
• Pregnancy and Maternity;
• Race;
• Religion or Belief;
• Sex;
• Sexual Orientation.

Associative discrimination is not expressed directly within the Equality act 2010, but is instead implicitly implied due to the new wording of the definition of discrimination. Sect. 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. It is the wording of the phrase “because of a protected characteristic” in the Equality Act 2010 that has allowed the Equality Act 2010 to protect a person from being discriminated against that is associated with the person with the protected characteristic that does not have the protected characteristic themselves. The protected characteristic has also been added to protect victims of harassment due to associated discrimination, Sect. 26(1) states that; A person (A) harasses another (B) if –

A engages in unwanted conduct related to a relevant protected characteristic, and

the conduct has the purpose or effect of-

violating B’s dignity, or

creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

It was the introduction of Sect. 13(1) and Sect. 26(1) that have enabled people to pursue claim’s of associative discrimination in cases of direct discrimination and harassment under the Equality Act 2010.

Associated Discrimination (Disability)

The Equality Act 2010 is designed to consolidate nine separate discrimination laws such as the Race Relations Act 1976 and the Disability Discrimination Act 1995 into a single act and as previously stated introduces principle of discrimination & harassment by association. One of the main reasons for the need for the new legislation can be seen in the landmark case of Coleman v Attridge (2008) C-303/06 which was heard under the Disability Discrimination Act 1995 and is the origin of the concept of associated discrimination.

The claimant, Ms Sharon Coleman who worked for the company Attridge Law as a legal secretary, brought a claim of unfair dismissal against her employers for unlawful disability discrimination. Ms Coleman was not herself disabled under the meaning of a disability in the Disability Discrimination Act 1995, but instead claimed unlawful disability discrimination on the grounds that her son is disabled and suffered from apnoeic and congenital laryngomalacia and bronchomalacia, and as such she was the primary carer for her disabled son.

Ms Coleman alleged that she was refused the same flexible working hours as colleagues that were parents of non disabled children. Ms Coleman also claimed that abusive comments were made regarding her and her child when requesting time off or flexibility in working hours to care for her child, where as no such comments were made when parents of non disabled children made the similar requests.

Attridge disputed the claims and argued that even if the claims were true, Mrs Coleman would still have no claim as the Disability Discrimination Act 1995 only covers discrimination and harassment against the disabled person themselves. This was due to the wording of the Disability Act 1995 (Sect. 3A), which states that“ a person discriminates against a disabled person if –

for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

he cannot show that the treatment in question is justified.”

It was the line that states “for a reason which relates to the disabled person’s disability” that Attridge claimed was relevant in establishing that Ms Coleman did not have a claim, as it was her son with the disability not herself.

The employment tribunal referred the matter to the European Court of Justice (ECJ)for interpretation under Article 234 EC, It asked whether the Framework Directive protects employees who, though they are not themselves disabled, are treated less favourably or harassed on the ground of their association with a person who is disabled. The EU- Council Directive 200/78/EC (Employment Framework) of November 2000 established a general framework for equal treatment in employment and occupation. The Directive prohibits employment discrimination on the grounds of religion or belief, disability, age or sexual orientation, and under Article 2 of the Directive prohibits both indirect and direct discrimination, and defines harassment amounting to discrimination. The decision was published on 17 July 2008, the ECJ agreed with the Advocate General’s opinion and ruled that the Framework Directive should indeed be interpreted as prohibiting associative discrimination on grounds of direct discrimination and harassment.

Associated Discrimination (Race)

There have been other cases of associated discrimination that have also served to shape the wording of the Equality Act 2010 in the area of associated discrimination, most notably on the grounds of race, Showboat Entertainment Centre Ltd. v. Owen [1984] ICR 6 became an authority in the area of associated discrimination. Owen was a white manager of an amusement arcade owned by Showboat Entertainment and was dismissed due to his refusal to carry out an instruction from his employers to exclude ‘young blacks’ from the premises. The Employment Appeals Tribunal (EAT) held that the wording of the Race Relations Act 1976 Sect. 1 allowed not only discrimination on the grounds of an applicant’s race, but his attitude to race, to be taken into account. Thus the correct comparison to be made was not between the applicant and another manager who had refused to carry out the discriminatory instructions, but between the applicant and another manager who did not refuse obey those instructions . The courts ruled that discrimination had occurred within this comparison of different treatment meted out to the two managers on the employer’s attitude to race which the first white manager had found offensive.

There had been other smaller race relations cases prior to 1984 were the phrase “associated discrimination” was not used but the circumstances are now seen as clearly analogous. For Example in the case of Zarczynska v Levy (1979), The instruction of a pub landlord, to the bar staff not to serve “coloured people” as customers, and in the case of Wilson v T B Steelwork Co Ltd (1977) a white woman was turned down for a job because her husband was not white.

The case of Showboat Entertainment Centre Ltd. v. Owen was used as a precedent case more recently in the case of Weathersfield Ltd v Sargent (1998). Both cases have many similarities, Mr’s Sargent, worked for a vehicle hire firm and like Owen had been asked by her employers to discriminate against specific groups of people on the grounds of race, as her employer made clear that she was not to hire vehicles to black or Asian people. Mrs Sargent course of action was to confirmed with a director of the company that this was indeed their policy. When this was confirmed, Mrs Sargent felt that she could not carry on at the company and resigned claiming constructive dismissal and racial discrimination. Whilst accepting the authority of the Showboat case, the defendants Weathersfield, in this case argued that the Industrial Tribunal made no finding of fact that Mrs Sargent had been treated or would have been treated differently from another person who did not have the same attitude to race. They backed this up with the argument that because Mrs Sargent did not complain about the policy before she resigned, then there would be no evidence on which Mrs Sargent could prove that she had been treated differently in relation to Sect 1 of the Race Relations Act 1976.

The EAT rejected the employers defence which they described as without merit on the facts or in legal terms and stated that it was not difficult to find that in these circumstances, Mrs Sargent had been unfavourably treated by comparison with another person in the mere giving of the instruction because she, unlike that hypothetical other person, did not regard herself as being able to continue to work with employers who operated such a policy.

The EAT also stated that the mere giving of the instruction could constitute a detriment for the purposes of Section 4 of the Act, as well as stressing that it must be made quite clear to employers that policies of this sort are intolerable.

Pregnancy Associated Discrimination

The case of Kulikaoskas v MacDuff Shellfish highlights the limits of the old sex discrimination Act 1975, and more recently the Equality Act 2010. Kulikaoskas work for MacDuff Shellfish for one month before he was dismissed, he brought a claim to the Employment Tribunal for unfair dismissal in relation to associated discrimination due to his partners pregnancy. Kulikaoskas was dismissed on capability grounds which he claimed was due to him lifting heavy objects for his pregnant partner which she could not lift herself in her condition.

The Employment Tribunal refused to accept Kulikaoskas claim for associative pregnancy discrimination under section 3A of the Sex Discrimination Act 1975 which lead him to appeal against this decision to the Employment Appeals Tribunal.

The appeal was subsequently dismissed on the grounds that:

s.3A of the Sex Discrimination Act 1975 (which protects pregnant women and those on maternity leave from discrimination) did not provide protection of association;

the European Framework did not require reinterpretation; and

the case of Coleman could not be extended by analogy

The Judge also stated that European law had identified a feature that is unique to women, “the ability to bear children”, and recognized that it is deserving of and requires special protection.  What the Judge was implying was, that there has emerged is a separate code that deals with pregnancy and maternity. Such protection could not be extended to a man even by association with a pregnant woman.

The Equality Act 2010 expressly states that Pregnancy and Maternity are protected characteristics, however the wording relating explicitly to pregnancy and maternity discrimination in the work place still refers to “a woman”, “to a pregnancy of hers” and “her” statutory rights, Sect 18(2) which appears to uphold the judgement in Kulikaoskas v MacDuff Shellfish, in the view that pregnancy is a unique characteristic.

Implications for Employers

Under previous legislation, an employment tribunal could make a recommendation that an employer must eliminate or reduce the effect on the claimant of any discrimination. The Equality Act 2010 extends this power so that it will now be possible for a tribunal to make recommendations that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not only on the claimant (even if the claimant has left their employer).

It is important to note that the act does not impose a duty to make “reasonable adjustments” for employees who have responsibilities as carers. However, employers should be careful to ensure that they take a consistent approach to flexible working applications and that they do not treat one group of carers (e.g. those caring for disabled relatives) less favourably than others when considering flexible working requests.

Employers should ensure employees are aware that discriminatory behaviour is not acceptable, no matter who it is directed at, and that any discriminatory actions will not be tolerated. Employers may wish to consider reviewing their equal opportunities and harassment policies to check that this is covered and providing updated equal opportunities training to employees.

Conclusion

In Conclusion the Equality Act 2010 offers greater protection on the grounds of discrimination by association by widening the scope of protection to individuals who have a protected characteristic