The dangers of discrimination by association.

Most employers are aware of the concepts of direct and even indirect discrimination whereby an employee is targeted because of a particular protected characteristic that they have or are perceived to have (sex, race, age, disability, sexual orientation, religion or belief).

Alternatively, indirect discrimination can arise where an employer has a specific Provision, Criterion or Practice which has the effect of indirectly discriminating against an employee who has a protected characteristic.   A well-known example was where the police used to have minimum height restrictions which indirectly discriminated against female candidates.

Discrimination claims by association in law are generally uncommon, however this is a developing area of employment law that we need to keep an eye on.

The first question to clarify is what actually is discrimination by association?  This can arise where an employee argues that they have been discriminated against – not because they have a protected characteristic, but due to the protected characteristic of another individual who is not employed.

The clarify further it could arise in the workplace where an employee is harassed or victimised because they have a gay child, or they are married to a person of a different religion or race.   It can also arise for example where an employee is treated less favourably because they require time off to look after a family member who has a disability.

Historically UK legislation did not make it expressly clear that claims based on associative discrimination could be pursued and case law has developed in this area over time.

In Coleman -v- Attridge Law in 2008, the European Court of Justice ruled that under EU law it was not necessary for an employee to actually be disabled to bring a direct discrimination claim for discrimination by association.   The Government then updated the law in the Equality Act 2010 which enables employees to bring claims of direct discrimination by association.

It remains unclear however under UK law whether a claim of associative discrimination could be brought where the discrimination is indirect.     The Coleman authority was in-fact about whether a mother of a disabled child could bring a claim for discrimination if her employer harassed her because of her child’s disability.

In MacDonald -v- Fylde Motor Co Ltd 2011, a male employee was dismissed because he had to stop working overtime to care for his disabled stepfather.   The employer had failed to show that it would have treated an employee who needed to leave on time for an evening class or to collect a child from nursery in the same manner.  Accordingly, it was held by the employment tribunal that there has been unlawful direct discrimination under the Disability Discrimination Act by association due to the disability of the employee’s stepfather.

Another problem in pursuing a claim for associative discrimination is that it will often be difficult for an employee to prove that the detriment they suffer is caused by the protected characteristics of another individual.   One growing area are requests to make reasonable adjustments and for flexible working.

It could be argued that a refusal to allow flexible working may amount to associative discrimination if it can be shown that the employee who has a disabled child was treated less favourably due to the disability of their child.  It is also an issue with associative age discrimination where employees increasingly need flexible working arrangements to care for elderly relatives and employers could create risk by failing to implement such arrangements.

As always it is highly recommended that employers put in place clear concise policies covering discrimination by association and that staff are trained so that they are aware and can spot the potential for discrimination by association in the workplace and minimise legal risk and exposure.

If you have concerns about discrimination in the workplace then contact Steven Eckett, Partner and Head of Employment at Meaby & Co LLP.   Tel: 020 7703 5034 or by e-mail: seckett@meaby.co.uk