The Employment Appeal Tribunal (EAT) has ruled that an associative victimisation claim should not have been struck out. The Employment Tribunal had been wrong in conducting an assessment of the degree of connection or association between the employee and the third party. What mattered was whether the employee was subjected to a detriment by reason of his association with another who had made protected acts.

Background

Mr Thompson was a bus driver for London Central Bus Company and was given a final written warning because he gave his high visibility vest to another employee. He claimed that he had been victimised on the basis of protected acts done by others. Some other employees had asserted that the company was in breach of the Equality Act 2010 and Mr Thompson claimed he was associated in the mind of the company with those employees’ complaints. He was also a member of the same trade union and he asserted that that was why he was disciplined by the company.

The Tribunal held that associative victimisation was possible but that the link between Mr Thompson and the other employees who had performed the protected acts was so tenuous that he was not entitled to protection. His claim was therefore struck out. Mr Thompson appealed to the EAT.

What does this mean?

The EAT held that the Tribunal was wrong to reach its conclusion without hearing evidence on the issue. There was no requirement for a particular relationship to be established between Mr Thompson and the other employees. The Tribunal only needed to establish whether Mr Thompson had been subjected to a detriment by reason of a third party’s protected act. Membership of the same trade union was capable of being a sufficient basis for a successful claim.

Previously, claims based on association were understood to be limited to direct discrimination and harassment because the wording of the victimisation provision in the Equality Act 2010 is more narrowly drafted. This case, therefore, represents a significant shift in the law and follows on from the recent case of CHEZ Razpredelenie Bulgaria. In this case, the ECJ held that the concept of associative discrimination could in principle also be extended to indirect discrimination.

What should employers do?

Employers should not subject employees to a detriment because the employee or someone associated with him or her has done, or might do, a ‘protected act’, for example by making an allegation of discrimination.

Case reference: Thompson v London Central Bus Company Limited