When the Equality Act 2010 ("EA") came into force, it was drafted to prohibit discrimination by association in relation to claims for direct discrimination and also for harassment. Therefore, an employer cannot treat an employee less favourably or subject him/her to unwanted conduct because of his/her association with a person with a protected characteristic, for example, a disabled son.

Conversely, the provisions of the EA dealing with indirect discrimination and victimisation were drafted so as not to prohibit discrimination by association.  For indirect discrimination claims, the employee bringing the claim must have the relevant protected characteristic (e.g. race, age, gender) and for there to be a victimisation claim the employee bringing the claim must have personally done a "protected act" (or be believed by the employer to have done that act) and have suffered a detriment as a result.  A protected act for the purposes of a victimisation claim includes bringing a claim under the EA, giving evidence or information in relation to proceedings under the EA, making an allegation that the EA has been breached or doing any other things in connection with or for the purposes of the EA.  

Recently in the case of Thompson v London Central Bus Company, it was determined at a Preliminary Hearing that there could in principle be a claim of associative victimisation, where an employee had been subjected to a detriment because of an association between him/her and a person who had carried out a protected act.  The Judge effectively re-wrote the EA, saying that it was necessary to do this to ensure compliance with EU law.  

Mr Thompson said that he was subjected to disciplinary allegations relating to a high-visibility vest because his manager associated him with others who had carried out protected acts. Mr Thompson also alleged that he suffered a detriment because of his association with the trade union in which employees who had carried out protected acts had belonged.

The Employment Tribunal ("ET") attempted to strike out the claim on the basis that a sufficient connection between Mr Thompson and the protected acts had not been made out but the Employment Appeal Tribunal ("EAT") said it should not be struck out and that the ET was wrong to require a particular form or degree of association, what mattered was the causation – was the treatment of the Claimant by reason of the protected acts of others (wholly or partly). No decision was made on the particular facts and the matter has been sent for re-hearing. 

For many the most interesting part of this case will be the assumption made at the Preliminary Hearing that the law should be re-written to allow for victimisation by association. This decision is appealable.

This case follows shortly after the decision in the summer of the Court of Justice of the European Communities (CJEC) in the case of CHEZ Razpredelenie Bulgaria AD v Nikolova and others which held open the possibility of indirect discrimination claims by association. Whilst this was a provision of services case and the circumstances surrounding this claim appear distinguishable from the majority of employment indirect discrimination claims, employers should have one eye to whether this principle develops in UK law. As we have seen in the holiday pay cases, the Tribunals seem to be more and more willing to re-write the law to ensure compliance with EU legislation and it may be that this trend continues.

We often get asked by our clients about the possibility of claims for indirect discrimination by association, especially when it comes to flexible working requests and working patterns (e.g. would an employee have a claim if they are disadvantaged by a working pattern because they are a carer for a person with a protected characteristic, perhaps an elderly or disabled relative).  At present these individuals do not get protection under the EA for indirect discrimination claims and employers may decide to continue to take a robust stance, but should be aware that there is a risk of becoming the test case! Therefore, to the extent possible employers should ensure policies and practices can be objectively justified. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.