The concept of associative discrimination, which occurs when somebody who doesn’t have a protected characteristic themselves is discriminated against because of the protected characteristic of someone else, has emerged relatively recently. Before the Equality Act 2010, it was unclear whether a discrimination claim had to be based on the victim’s own, actual protected characteristic (rather than a perceived characteristic, or the characteristic of others). In 2008, in Coleman v Attridge Law and another, the ECJ ruled that under the Equal Treatment Framework Directive, it is not necessary for an employee to be disabled to bring a direct disability discrimination claim. The EAT subsequently gave effect to the ECJ’s decision, deciding that words could be read into the Disability Discrimination Act 1995 prohibiting “associative” direct discrimination.
Following the ECJ’s decision in Coleman, the then Labour government decided to extend the prohibition against associative (and perceptive) direct discrimination and harassment to other protected characteristics. Under the Equality Act 2010 direct discrimination and harassment claims based on association or perception can be brought in respect of all protected characteristics (apart from marriage and civil partnership). Treatment can be “because of” a protected characteristic where it is because the claimant is perceived to have that characteristic or because of the characteristic of another person, such as someone with whom the claimant associates.
Until very recently it was thought that such associative discrimination was limited to direct discrimination and harassment. However, two recent cases have indicated that ‘associative’ discrimination claims may also be possible in respect of indirect discrimination and victimisation. In CHEZ Razpredelenie Bulgaria (C-83/14) the ECJ held that the concept of associative discrimination could in principle be extended to indirect discrimination, whilst in Thompson v London Central Bus Company Ltd UKEAT/0108/15, the EAT considered a claim for associative victimisation.
Chez is a discrimination in goods and services claim, but the principle it establishes will also apply in the employment field. In this case the ECJ said that an individual may claim indirect discrimination under the EU Race Equality Directive on the basis of association with a group that is disadvantaged by a provision, criterion or practice, even if he or she is not of the same ethnic or racial group. The dispute concerned a Bulgarian woman who runs a shop in a district of a Bulgarian town inhabited mainly by persons of Roma origin. CRB is an electricity supplier. CRB installed electricity meters for all consumers in the claimant’s district on concrete pylons at a height of 6-7 metres. Elsewhere meters were generally installed at a height of around 1.7 metres.
The claimant claimed that the reason for this practice was the ethnic origin of the majority of inhabitants of the district and that she was suffering direct discrimination on grounds of nationality. Although not Roma herself, she ‘identified’ with the Roma people living in her district. The Bulgarian authorities held that it was indirect discrimination on the grounds of nationality.
On a reference to the ECJ, the Advocate General considered that the action taken by CRB affected not only people possessing the protected characteristic at issue but also other persons by way of ‘collateral damage’. She considered that it would be fair to recognise the concept of ‘discrimination by association’ in connection with indirect discrimination in the same way as it is recognised in connection with direct discrimination. The claimant should be able to succeed in her claim of indirect discrimination even though she is not herself of Roma ethnicity. The ECJ has now given judgment, broadly agreeing with the Advocate General. The ECJ was less explicit in its judgment than the Advocate General and did not directly refer to ‘associative discrimination’. However, it accepted that, although the claimant is not of Roma origin, ‘Roma origin’ was the basis on which she considered that she had suffered less favourable treatment. It held that Articles 1 and 2(1) of the Directive, which cover both direct and indirect discrimination, must be interpreted as applying to the CRB’s policy in the present case, ‘irrespective of whether that [policy] affects persons who have a certain ethnic origin or those who, without possessing that origin, suffer, together with the former, the less favourable treatment or particular disadvantage resulting from that measure’.
This case, although decided on unusual facts, could have significant implications for UK law. Indirect discrimination under the Equality Act 2010 can only be established if the individual has the same relevant protected characteristic (such as race or ethnicity) as the disadvantaged group – ie s.19 Equality Act does not provide for ‘associative’ indirect discrimination. If, as appears to be the case, the ECJ has ruled that such discrimination would be prohibited by the Race Directive then the Equality Act is apparently incompatible – and potentially not only in respect of race but also other characteristics protected by EU law. Although other protected characteristics are dealt with in a different Directive, the wording regarding indirect discrimination is very similar.
In the second case, Mr Thompson was a bus driver for London Central Bus Company Ltd (LCBCL). He was dismissed following an incident in which he gave his high visibility vest to another employee. He claimed unfair dismissal, notice pay and victimisation. He also raised an internal appeal. On appeal, his dismissal was overturned and a 21-day unpaid suspension and final written warning were substituted. Only his victimisation claim remained.
The victimisation claim was not based on a protected act of Mr Thompson, but on the protected acts of others. Mr Thompson claimed that he had told management that he had overheard a conversation in which it was suggested that LCBCL had targeted certain employees who had asserted that management were in breach of the Equality Act 2010. Shortly afterwards, disciplinary action had been initiated against him.
Mr Thompson claimed that he was “associated” in the mind of LCBCL with the protected acts of others and that was what lead LCBCL to commence disciplinary action against him. Mr Thompson was also “associated” with those who had performed the protected acts by reason of the fact that they were members of the same trade union.
At a preliminary hearing, the claim for associative discrimination was struck out. The tribunal concluded that the link or association between Mr Thompson and the individuals who performed the protected acts was so tenuous that Mr Thompson was not entitled to protection under the Equality Act 2010. In addition, the tribunal also expressed doubts as to whether membership of the same trade union could give rise to the association necessary for the purposes of section 27.
Mr Thompson appealed. The EAT held that the tribunal was not entitled to reach the conclusions it did as to the nature of the link between Mr Thompson and the other individuals, without first hearing evidence. In the EAT’s view there was no requirement for a particular relationship to be established between Mr Thompson and the protected acts of others. The test for a tribunal to apply was whether Mr Thompson was subjected to a detriment by reason of a third party’s protected act. Any link between a claimant and the third party could exist solely in the mind of the employer. In this case, there was no reason for the tribunal to conclude that membership of a trade union by both Mr Thompson and those individuals performing the protected act was an insufficient basis for a successful claim. The EAT considered that it was “entirely possible to conceive of a situation where an employee’s membership of an organisation, which had protested about protected acts, might cause an employer to treat the employee in a detrimental way”.
Both Thompson and Coleman make it clear that the issue is not whether there is a relationship between the victim and the third party or how close that relationship is. The more tenuous the association between the person with the protected characteristic and the person bringing the claim, the harder it will generally be to prove that the protected characteristic was the reason for the discrimination, but as a matter of law there is no minimum degree of association which must be established.
Thompson has been remitted for hearing by the tribunal, but if the claim is successful it could herald a significant shift in discrimination law.