The claimant in Thompson v London Central Bus Company was dismissed following an incident in which he had given his work high-visibility vest to another employee. Although he was reinstated on appeal, he claimed victimisation, not in relation to any protected act of his own, but because he had relayed to a manager a conversation he had overheard in which it had been suggested that other employees (members of the same trade union as the claimant) had been targeted for accusing the company of breaching the Equality Act. He argued that he was associated in the mind of the employer with the protected actions of those other employees and the disciplinary allegations relating to the vest were the consequence.
His claim of victimisation "on an associative basis" was struck out by the Tribunal as having no reasonable prospect of success, because the link between the claimant and the other employees was too tenuous.
The EAT allowed his appeal; the claim should not have been struck out. There was no need for any particular form or degree of association. The issue is not whether there is a relationship of some kind but whether, in the mind of the alleged discriminator, the protected act of a third party was part of the reason for its treatment of the claimant.
The courts and tribunals appear to be taking a broad view of what might amount to associative discrimination – this is the first EAT case since the Equality Act consolidated the rules in this area where discrimination by association has been found to apply to victimisation; and a few weeks ago the European Court decided, in a case about the supply of goods and services, that associative discrimination could in theory apply to indirect discrimination.