Discrimination by association: the basics
The concept of “discrimination by association” – where the party subjected to discrimination does not possess a Protected Characteristic (PCs) but is associated with someone who does – has been around for quite some time. It is most often applied and used in direct discrimination and harassment claims. One example may be a white employee complaining about racist jokes at work. Although the treatment in question is not meted or directed at the white employee, his association with, say, black colleagues is sufficient to justify any offence felt by the white employee for a claim to be made.
But what about claims for indirect discrimination, where the treatment in question is not directed at the employee. You may recall that indirect discrimination claims arise where an employer operates an “across the board” policy or procedure but some employees are more negatively impacted by it than others and the employer cannot justify the policy or procedure on non-discriminatory grounds.
A recent tribunal decision, based on a European court judgment, confirmed that a claim for discrimination by association can be made in such cases. This means that an employer’s policies and procedures will be considered in light of their impact on employees, but where the PC in question is not theirs. Employers may well need to know more about their employees’ associates than they ever did before.
A healthy employee with caring responsibilities for a disabled relative unlawfully discriminated against by a requirement to work full-time at the office
In a recent case to reach the employment tribunal, an employee who was dismissed for redundancy won her claim for indirect disability discrimination by association. The employee, who was not herself disabled, was the principal carer for her disabled mother. She was employed as a Senior Lending Manager (SLM) by Nationwide on a homeworker contract. When Nationwide decided that SLMs could no longer work at home on a full-time basis due to the need to provide effective on-site supervision, the employee could not comply and was subsequently dismissed.
An employment tribunal agreed that employees who care for disabled people were less likely to be able to be office-based than employees who do not have such caring responsibilities. As a result, carer employees (including the claimant) were at a substantial disadvantage because of their association with a disabled person.
Although employers can justify indirect discrimination (on non-discriminatory grounds), in this case, no such defence could be made out. Nationwide was fully aware of the employee’s mother’s disability and the disadvantage that she would suffer by the application of its requirement but did not take reasonable steps to avoid the disadvantage. The tribunal also took the view that the identified need to provide effective on-site supervision was in itself discriminatory and, in any event, Nationwide could achieve it through hybrid working.
Consider the facts; talk to your staff
The case serves an an important reminder that employers who seek to introduce new policies and procedures ought to, first, consider employees’ personal circumstances and, second, adopt the path of least disadvantage if their employees’ association with others with protected characteristics may place them at a significant disadvantage.
Referring specifically to the facts of this case, employers with staff with caring responsibilities will be wise to consider carefully whether an across-the-board policy can be justified and whether a less discriminatory approach may be used. Failure to do so will be at their peril.