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

Victimisation by association?

There seems to be a flurry of recent cases potentially widening the scope of discrimination law.  Last week, Michal Chudy reported on the case of CHEZ Razpredelenie Bulgaria  which considered indirect discrimination.  In the case of Thompson v London Central Bus Company Ltd, the question of associative discrimination in relation to victimisation was considered. 

By way of a reminder under the Equality Act 2010, victimisation occurs if a person (A) subjects another person (B) to a detriment because either B has done a protected act or A believes that B has done (or may do) a protected act.  In the Thompson case, Mr Thompson was a bus driver and he was disciplined for giving another employee his high-vis vest.  He was already subject to a final written warning and was dismissed as a result of this disciplinary offence.  He appealed the decision to dismiss and was successful.  He was reinstated but given a 21 day unpaid suspension and a final written warning.  Mr Thompson bought a claim for victimisation.  This was on the basis that a protected act had been done by someone with whom Mr Thompson was associated (in the mind of management) and he alleged the disciplinary action against him was as a result.

In the employment tribunal, the employment judge at a preliminary hearing concluded that a claim of victimisation could rely on acts of others and that s.27 (1)(a) of the Equality Act must be read as providing simply ‘because of a protected act’ in order to ensure compliance with EU obligations.  This point was not appealed.  However, a further preliminary hearing was ordered to consider the causal connection between the protected acts and the detriment complained of.  At this hearing, the claim was struck out as the employment judge was satisfied that the link between the Claimant and the other employees (who did the protected act) was so tenuous that the Claimant was not afforded the protection of s.27 (the Claimant relied on the fact that both he and the other employees were members of the same (albeit small) trade union).  The employment judge concluded that the claim had no reasonable prospect of success. 

The EAT concluded that the employment tribunal was wrong to strike out the claim holding that the employment judge had erred in seeking a particular form or degree of association for the purpose of associative victimisation.  Instead, the EAT confirmed that ‘what matters is whether the treatment of the Claimant was by reason of his association with another who made protected acts’.  This would be a question of fact for an employment tribunal. 

This case provides further evidence that ‘associative discrimination’ may not be limited to direct (or possibly indirect following CHEZ Razpredelenie Bulgaria) discrimination and harassment and represents a shift in the boundaries of discrimination law.    

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