Debunking Associative Discrimination
The concept of associative discrimination is often overlooked by employers, which may have devastating effects, and could potentially lead to sustainable claims being brought against the company. We define associative discrimination in the workplace, and show you how to avoid it!
Defining Disability Associative Discrimination
Associative disability discrimination is direct discrimination against someone because they associate with another person who is disabled. An example of this would be if a worker is discriminated against, or does not get offered a job because the candidate discloses that his/her relative has cancer. "Everyone with a cancer diagnosis is classed as disabled under the Equality Act 2010, and is therefore protected by this act," advises June Fraser - Senior HR Officer at Search Consultancy - in our previous blog about Managing Cancer in the Workplace.
“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,” observes Jennifer Smith, Award-winning Employment Solicitor and JMW Solicitors LLP speaker in Search Consultancy’s Managing Cancer in the Workplace seminars.
“It is an interesting time for employers and HR officers and they should be aware of emerging trends and developments, in order to minimise exposure to claims,” she advises.
The Case that resulted in Legal Recognition of Associative Discrimination
“Employers and HR officers will recall the case concerning Sharon Coleman and her former employer Attridge Law, in which Ms Coleman alleged that she had been discriminated against for trying to take time off to care for her disabled son,” says Jennifer.
Because she was the primary carer for her disabled son, she asked her employer if she could work flexibly and was verbally abused both for doing so, and for being late after attending to her son. In addition, she was refused flexible working time. Worse still, employees who did not have disabled children were allowed flexible working hours and did not suffer such abuse. Coleman claimed discrimination by association with her disabled son. She argued that she suffered less favourable treatment connected with the disability of her son.
Jennifer continues, “The case found its way to the European Court of Justice (ECJ), who ruled that the Equal Treatment Directive protects employees in her position, i.e. those who are not themselves disabled, but who are prejudiced by association with someone who is.” The ECJ agreed that Coleman could claim ‘associative discrimination’ because the underlying purpose of the EC equal treatment framework directive 2000/78 is to stop all discrimination on the grounds it covers: disability, age, religion and sexual orientation. It also ruled that the directive should not be interpreted so narrowly that it applies only where the victim is disabled.
“The UK Equality Act now provides that direct discrimination claims based on association (and perception) can be brought in respect of all protected characteristics (apart from marriage and civil partnership),” Jennifer advises.
Does the Act apply to Indirect Discrimination?
The concept of associative discrimination seems to be continuously evolving as more cases arise. “The protection was thought only to apply to direct discrimination or harassment and it does not cover the duty an employer may have in relation to making reasonable adjustments. However, this may be set to change,” advises Jennifer. Direct discrimination is when a person is treated differently and less favourably than someone else for certain reasons.
Direct discrimination can be because of:
- Gender reassignment
- Marriage or civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation.
The Equality Act refers to these as protected characteristics.
Indirect discrimination is when there’s a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. The Equality Act refers to this as putting a person at a particular disadvantage.
“Two recent cases have indicated that associative discrimination claims may also be possible in respect of indirect discrimination and victimisation, potentially opening the door for individuals without a protected characteristic themselves to bring more discrimination claims,” says Jennifer, who provides the following case details:
“In the European case CHEZ Razpredelenie Bulgaria, 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, the Employment Appeal Tribunal considered a claim for associative victimisation. These decisions suggest a willingness by the courts to extend the scope of associative discrimination.”
Employers Take Note!
Employers need to be mindful of the fact that laws are subject to change.
“It appears likely that further cases will follow in which claimants seek to rely on associative discrimination to bring claims. We are already aware that employees have the right to time off during working hours for dependants, this time off is intended to deal with unforeseen matters and emergencies. With government cuts and more pressure being put on family members to deliver care packages, this may see a rise in potential workplace disputes and associative discrimination claims,” Jennifer predicts.
The right to claim associative discrimination could be exploited by certain individuals and employers need to thoroughly evaluate each case as it arises.
“There has been some concern shared that the extension to associative discrimination may be used tactically by some employees as a method of bringing or threatening a claim, when the employee has less than two years' service,” cautions Jennifer. “However, employers should not automatically disregard allegations of associative discrimination, even in seemingly spurious claims but should, instead, seek advice on how to deal with these issues when they arise.”
Could Brexit have an Impact on Associative Discrimination?
Although the British government drafted many of the equality laws that employees working in the UK enjoy today, the EU legal framework has been instrumental in recognising associative discrimination and including it in employment legislation for all member states. Because of this, some employment experts have predicted that Brexit may potentially result in a removal of the associative discrimination laws.
“Although a wholescale repeal is unlikely, there would likely be tinkering around the margins of equality laws. Particular changes could include the removal of associative discrimination rights,” cautions Carl Richards, Employment Law Specialist and Partner at King & Wood Mallesons SJ Berwin.
Could you Minimise Associative Discrimination?
Whether you’re an engaging leader, diplomatic mediator or driven by numbers and analytics, we at Search are recruiting HR professionals at all levels. Whether you’re looking for HR Director, HR Manager, or HR Assistant jobs, we can help. If you are looking to recruit a new addition to your HR team, or are looking to fill a role in HR, contact Search today.
About our Contributors
Jennifer Smith is an Award-winning Employment Solicitor at JMW Solicitors LLP. She has a broad range of employment law experience, spanning both contentious and non contentious employment work. In addition to tribunal work, she also reviews and drafts contracts of employment, policies and procedures, consultancy agreements and compromise agreements. Advising companies on how to protect their interests through effective use of covenants.
June Fraser is currently a Senior HR Officer for Search Consultancy. She provides operational support to the Search management group and staff, offering pro-active advice & guidance on a variety of HR issues. She assists with the day to day operations of the HR department such as managing the administration of HR Policies & Procedures, providing management information, employee relations, training and development, benefits and compensation.
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