For some time now it has been recognised that direct discrimination occurs not only if someone is treated less favourably because of their own protected characteristics, but also if they are treated less favourably because of somebody else’s protected characteristics. According to two recent cases, this concept of so-called ‘associative’ discrimination also applies to indirect discrimination and victimisation claims, and in a third, ongoing, case a claimant is hoping to persuade the courts that the same principle should be applied to the duty to make reasonable adjustments.
In the case of CHEZ Razpredelenie Bulgaria, the EU Court of Justice (CJEU) suggested that the concept of associative discrimination will also apply to indirect discrimination.
The claimant ran a shop in a particular district of Bulgaria, most of whose inhabitants (although not the claimant) were of Roma origin. In this district, and in other areas populated by Roma, the electricity supplier had decided to install meters much higher from the ground than it did in other areas, to prevent tampering. This made it difficult for those, like the claimant, who lived or ran businesses in the district to monitor their electricity usage and check that they were not being overcharged. The claimant brought a claim alleging that the electricity supplier’s actions were direct or indirect race discrimination.
Unsurprisingly, the CJEU ruled that the claimant could complain of direct race discrimination even though the less favourable treatment did not come about because of her own ethnic origins. More significantly, the CJEU also said that if this had been a case of indirect, rather than direct, discrimination, the claimant could bring a valid complaint, notwithstanding that she does not share the same ethnic origins of those who were particularly disadvantaged by the practice. This part of the CJEU’s decision suggests that once it is established that those with a protected characteristic are particularly disadvantaged, anyone who suffers that same disadvantage can bring a claim of indirect discrimination regardless of whether or they share the same protected characteristic of the disadvantaged group.
This broad approach has the potential to extend the reach of indirect discrimination law in those areas covered by EU Directives. To take an example, it is generally acknowledged that an employer’s refusal to countenance part-time work could lead to claims of indirect discrimination from female employees on the basis that such a practice disadvantages women in particular because they are more likely to have primary caring responsibilities that make it more difficult to work full-time. The reasoning in Chez suggests that male employees with caring responsibilities could also bring claims of indirect discrimination without needing to show that men, as a group, are put at a particular disadvantage.
There are, however, limits to the impact of the case in the UK. This is because claims of this kind fall outside the definition of indirect discrimination in the Equality Act 2010. Recent cases have shown, however, that UK courts are usually prepared to bend the Equality Act to give effect to EU law when needed (as the next case demonstrates). It is likely, therefore, that courts and tribunals will allow claims of ‘associative’ indirect discrimination in the workplace. Outside the workplace, however, the case will make less of an impression. This is because the scope of EU discrimination law is much narrower than our domestic legislation, covering sex and (some) race discrimination but not, as yet, discrimination related to other protected characteristics. So although service providers and landlords, for example, might face claims of associative indirect race or sex discrimination, it is unlikely that a court could uphold a claim against such a person based on some other form of indirect associative discrimination.
As well as prohibiting discrimination in various spheres of life, the Equality Act also outlaws victimisation. Under the Act, victimisation means treating someone unfavourably because they have done what is termed a ‘protected act.’ Protected acts include, amongst other things, making an allegation of discrimination or doing something else in connection with the Equality Act.
An Employment Tribunal has now ruled that an employee can claim victimisation even where they themselves have not done a protected act: as long somebody did a protected act, anyone else who is subjected to unfavourable treatment because of it will have a valid claim (Thompson v London Central Bus Company Ltd, 14 May 2014, ET, unreported). The Tribunal reasoned that this is how the concept of victimisation is understood in EU law and, therefore, the Equality Act must be interpreted in a way that allows such claims (at least in those areas that are within the scope of EU law, such as the workplace).
As this is a Tribunal decision, it need not be followed in other cases. Although the case has been considered by the Employment Appeal Tribunal (EAT), this particular ruling by the Tribunal was not challenged in the appeal. However, the EAT’s ruling is of interest because it makes it clear that claims of so-called associative discrimination can arise even where the victim is not associated in any way with the person who has the relevant protected characteristic (and the same is true of claims of associative victimisation, assuming the Tribunal was right to say such claims can be brought). This is a point that the EAT has made before, in the case of Coleman v Attridge Law, where it was noted that the term ‘associative discrimination’ is simply convenient short-hand. As the EAT said in Coleman, in practice it may be uncommon for someone to be discriminated against on the ground of the protected characteristic of anyone with whom he is not in some sense ‘associated’, but the existence of such association is not a necessary condition for there to be discrimination.
Reasonable adjustments – a step too far
It seems that there are, however, some limits to the scope of associative discrimination. In the case of Hainsworth v Ministry of Defence the Court of Appeal ruled that an employer did not owe a duty to make reasonable adjustments for an employee to accommodate the needs of her disabled daughter. This conclusion is unsurprising given that the CJEU in Coleman v Attridge Law said that it is only workers who are themselves disabled who benefit from the duty in EU law to make reasonable adjustments. Nevertheless, the claimant in the Hainsworth case has now asked the Supreme Court to refer the issue to the CJEU for a ruling. Whether or not the Supreme Court will agree to that request remains to be seen.