Last month we reported that the concept of associative discrimination had been expanded by the ECJ to include associative indirect discrimination claims. The EAT has now held that an associative victimisation claim can proceed and there is no requirement for a claimant to establish any particular form of relationship with those who have committed the protected acts. The correct test is whether the reason for the detriment in question was the protected acts (Thompson v London Central Bus Company).
The Equality Act 2010 provides that certain claims do not require the claimant to possess the relevant protected characteristic. Instead, a claim can be based on the protected characteristic of someone with whom the claimant is associated. The claims expressly covered by the Equality Act 2010 (the Act) are:
- claims of associative direct discrimination for all protected characteristics, save marriage and civil partnership; and
- claims of harassment.
It has also recently been decided by the ECJ that associative indirect discrimination claims are permissible. You can read our report on the decision in CHEZ Razpredelenie Bulgaria here.
The question remained whether associative victimisation claims were also possible. Section 27 of the Act sets out the definition of victimisation and provides that A victimises B if A subjects B to a detriment because B does a "protected act" or because A believes that B has done, or may do, a protected act. Protected acts include bringing proceedings under the Act and giving evidence or information in connection with proceedings under the Act. The wording appears to make it clear that the detriment suffered by B must be because of B's protected act (or A's belief about B's protected act). Yet, in a further extension to the concept of associative discrimination, the EAT has concluded that a claim of associative victimisation should be allowed proceed.
The claimant was employed as a bus driver and was dismissed on the grounds that he had given away a high-visibility vest issued to him by his employer. At the relevant time, the claimant was subject to a final written warning for an earlier disciplinary offence. However, the claimant's internal appeal was allowed and the dismissal decision was substituted by a 3-week unpaid suspension and a further final written warning. In the meantime, the claimant had issued Employment Tribunal proceedings for unfair dismissal and victimisation. The unfair dismissal claim fell away following the outcome of the internal appeal process. However, the claimant sought to proceed with the victimisation claim.
The basis of the victimisation claim was that the employer had subjected him to disciplinary proceedings because of his association with others who had committed protected acts under the Equality Act 2010. In particular, the claimant said he had overheard a conversation which suggested that the employer had previously dismissed employees who had committed protected acts under the Act. The claimant reported this conversation to a manager and he alleged that the disciplinary proceedings followed as a direct result and were overseen by the individuals implicated in the dismissal of the other employees.
A Preliminary Hearing the Employment Judge decided that the claim for associative victimisation could proceed on the basis that section 27 of the Act had to be read as providing "because of a protected act" (rather than because of B's protected act) in order to comply with EU law. That decision was not appealed by the employer.
However, a second Preliminary Hearing was held to establish which protected acts were relied on by the claimant and the what the causal connection was between those acts and the detriment alleged by the claimant.
The Employment Tribunal struck out the claim on the following grounds:
- There was an absence of the appropriate form of association: the Employment Judge held that merely overhearing a conversation, without more, could not amount to association for these purposes. He also had "very significant doubts" that simply belonging to the same trade union as the employee who had committed the protected act could establish association.
- It was not clear that there was a causal link between the protected act and the alleged detriment: in the Employment Judge's view the decision to impose an alternative disciplinary sanction following the internal appeal process did not involve any victimisation of the claimant.
The claimant appealed to the EAT. The key ground of appeal was that the Employment Judge had been wrong to conclude that the there had to some particular form of association with the persons whose protected acts were relied on. Instead, the question should simply have been whether the claimant was subjected to a detriment because of the protected acts.
The EAT allowed the appeal, rejecting the Employment Judge's approach that a certain form of association is necessary for an associative victimisation claim to have reasonable prospects of success. The correct question was whether the claimant's treatment was by reason of the protected acts of others. This did not require any particular form of relationship between the claimant and others. Rather, it was a question of fact as to whether the employer had subjected the claimant to a detriment because of the protected acts. The EAT noted that the association: "…might be wholly or in part in the mind of the employer". This will be a fact-sensitive question for the Employment Tribunal.
The issue the EAT had to grapple with here was whether the Employment Judge had been correct to strike out the claim as having no reasonable prospects of success on the basis that the claimant could not establish the appropriate form of association with those who had committed the protected acts. The EAT's decision on this point sensibly recognises that the employee may have no such association, but could nevertheless be subjected to a detriment because the employer mistakenly believes there to be such an association.
However, the critical issue of whether the victimisation provisions in the Act should be interpreted as extending to associative claims was not challenged by the employer. Whilst persuasive, the Tribunal's decision may not be the final word on whether such claims are permissible under the Act. In the meantime, it would be sensible for employers to assume that such claims are permissible and take steps to prevent such claims arising. Employers can avoid vicarious liability for acts of victimisation committed by their own employees where they can demonstrate they have taken all "reasonable steps" to prevent those acts from occurring. This will usually require the employer to have appropriate anti-discrimination and anti-bullying and harassment policies in place and to ensure these are understood and observed by staff. Appropriate training should also be offered and any complaints should be dealt with swiftly.