Thompson v London Central Bus Company Ltd
In this case the EAT explored the possibility of a claim for associative victimisation and the nature of the connection between the claimant and the individual who had performed the “protected act.”
For the purposes of a victimisation claim, “protected acts” include bringing a claim under the Equality Act, giving evidence or information in connection with any proceedings under the Equality Act, doing something for the purpose of or in connection with the Equality Act and alleging that someone has contravened the Equality Act.
Mr Thompson, a bus driver, was dismissed for giving a high-visibility vest issued to him to another employee (he had already received a final written warning which remained live at this time). He brought a tribunal claim for unfair dismissal, notice pay and victimisation.
Mr Thompson also lodged an internal appeal. He apologised as part of this appeal. The employer decided to impose a 21 day unpaid suspension and a final written warning instead of dismissal. Given his reinstatement by his employer, Mr Thompson did not pursue his claims for unfair dismissal and notice pay. However, his claim for victimisation continued.
Mr Thompson said he was victimised. Not because he had committed a protected act himself, but rather because he was associated with others who had carried out protected acts. Therefore, he had a claim for victimisation “on an associative basis”.
He felt the disciplinary allegations were a detriment which resulted from his association with an employee who had committed a protected act.
A preliminary hearing was held and the tribunal found that Mr Thompson could rely on the protected acts of others in order to bring a victimisation claim. However, the tribunal concluded that a further preliminary hearing was required in order to assess the causal connection, which the tribunal considered to be “loose”.
The claim for associative discrimination was struck out at this second preliminary hearing. The tribunal concluded that the link or association between Mr Thompson and the individuals who performed the protected acts was so tenuous that there should be no protection under the victimisation provisions of the legislation.
Mr Thompson appealed.
The EAT held that the tribunal was not entitled to reach the conclusions it did. The correct test is whether the claimant was subjected to a detriment by reason of a third party’s protected act: the issue is not whether there is a relationship between the victim and the third party but whether, in the mind of the employer, the protected act of a third party was the reason for the treatment of the employee.
Points to note
This case confirms that claims for associated victimisation can proceed under the Equality Act. This increases the scope of the protection against victimisation to employees and workers who have not carried out a protected act themselves but are associated with someone who has and suffer a detriment as a result. There is an increasing trend towards recognising associative discrimination in the tribunal.