Maxine Orr, Partner, considers two cases whereby an employee was not required to share the relevant protected characteristic in order to claim discrimination by association
The law in relation to discrimination is far from straightforward and case law has confirmed that for an employee to be protected from discrimination he or she need not actually possess the protected characteristics to be able to claim that he or she has been subjected to unlawful discrimination. An employee can bring a claim for discrimination on the basis of a protected characteristic of someone with whom the employee is associated.
In a case in England, Mr Noble brought a claim against his company Sidhil Ltd claiming that he had suffered harassment contrary to the Equality Act 2010 because his Line Manager, made comments relating to race and religion or belief and that these comments had created an intimidating, hostile, degrading, humiliating or offensive environment for him. It was his case that, his Line Manager referred to Nelson Mandela as evil during a conversation and frequently used the word “Paki”. He issued proceedings for harassment to an Employment Tribunal. However his claims were dismissed on the basis that although they may have been upsetting, they were not unlawful because Mr Noble was white and British and therefore did not share the relevant protected characteristics of being of a different race, religion or sharing a different belief. Mr Noble appealed to the Employment Appeal Tribunal.
The Employment Appeal Tribunal stated that this was clearly wrong and remitted the case to a newly constituted Tribunal stating that Mr Noble was not required to share the relevant protected characteristic, and he was not required to identify a person in possession of the relevant characteristic with whom he was associated in order to claim harassment by association.
The Employment Appeal Tribunal stated that it is enough for an employee to show that the conduct was related to that characteristic and had the purpose or effect of violating his dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment.
“Discrimination by association” can also arise in the area of disability discrimination as in the case of MacDonald by Fylde Motor Company Ltd. The Employment Tribunal stated that Mr MacDonald, a full-time Delivery Driver, who had told the Directors of his company that he would be unable to work in the evenings and do overtime due to his caring responsibilities for his step-father who was disabled. the Tribunal held that there was evidence of the company putting pressure on Mr MacDonald to work after his normal hours and his normal finish time of 5.30pm and that he had been punished for refusing to carry out any aspect of his job that he reasonably considered might extend beyond that time. The Tribunal held that these incidents were related to his step-father’s disability and therefore amounted to harassment.
It is important that employers take professional legal advice in dealing with employees who are relying on protected characteristics of someone else in relation to treatment in the workplace especially on the grounds of harassment. At the concept of “associative discrimination” is a matter which will continue to be protected and employers need to be aware of their obligations.
Maxine Orr is a Partner in Worthingtons Commerical Solicitors, specialising in employment law.