The EAT has held that an Employment Tribunal was wrong to strike out a claim that in effect amounted to victimisation by association: Thompson -v- London Central Bus Company 2015.

Mr Thompson was employed as a bus driver by LCBC. He had a conversation with a manager in which he discussed the protected acts of other employees (as a result of which, it was argued, he was ‘associated with’ the protected acts in the mind of the manager). Subsequently, apparently unrelated disciplinary proceedings were brought against him and he was dismissed. The Employment Tribunal struck out his claim for “associative discrimination”, on the basis that the link / association between Mr Thompson and the individuals who did the protected acts was too tenuous.

The EAT disagreed, and remitted the case to a fresh tribunal. The question that must be asked is not whether there is in existence a relationship of some defined or 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.

To succeed with a claim for victimisation under the Equality Act 2010, the Claimant himself must have carried out the protected act. This is the first case where “associative discrimination” has been claimed. Mr Thompson has not yet succeeded with his claim; the threshold for a strike-out application (which was at issue in this appeal) is quite different. If he does succeed, then this would potentially be a further expansion of discrimination law.