WorkLife

Our thoughts on the world of employment law - and beyond.

Can a company bring a discrimination claim?

Yes, according to the EAT, in EAD Solicitors LLP v Garry Abrams, which held that a company can bring a direct discrimination claim for detrimental treatment it has suffered by reason of the protected characteristic of an associated individual.

This appeal related to a claim that the LLP had discriminated against a limited company because of the age of its sole director, Mr Abrams. On appeal, the LLP argued that only an individual could be protected from discrimination under the Equality Act, as only an individual can be said to have a protected characteristic (e.g. age, disability, be subject to gender reassignment, be entitled to marriage and civil partnership, enjoy pregnancy and maternity, have race, religion or belief, sex or sexual orientation).

The EAT rejected this argument, finding that, whilst only an individual can have a protected characteristic, detrimental treatment can be suffered by any person, whether that person is an individual or a corporation. Section 13(1) of the Equality Act 2010 states that, “a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. In coming to its decision, the EAT noted that this wording does not say the discrimination has to be because of a protected characteristic of the person suffering the detriment. It found that it is therefore entirely possible within the wording of the Equality Act that the protected characteristic may be that of an individual who is not the claimant.

It is not difficult to imagine a company bringing a claim for direct discrimination where, for example, it has been shunned commercially because it is seen to employ a workforce of a particular ethnicity; it loses a contract because it employs those with specific disabilities that were unattractive to would-be contractors; or because of the chief executive’s sexual orientation. Quite apart from any other considerations, employers should therefore take care from a legal perspective not to discriminate because of a protected characteristic when selecting or determining the arrangements with its contractors.

This case follows a number of recent cases potentially widening the scope of discrimination law. Last week, Claudia Rooney reported on the case of Thompson v London Central Bus Company Ltd which considered associative discrimination in relation to victimisation. The week before that, Michal Chudy reported on the case of CHEZ Razpredelenie Bulgaria  which considered indirect discrimination.

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