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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.

Kate Matthews, partner at Boddy Matthews Solicitors, explains how to resolve disputes on a step-by-step basis.

Owning a franchise can be a fruitful business relationship where success for franchisor and franchisee is interdependent. Clear and effective communication is a key factor for that success.

It is therefore all the more important to swiftly address concerns arising during the course of this relationship, however big or small, to avoid potentially long lasting adverse damage to the relationship or at worst its ultimate early termination.

A well drafted and ethical Franchise Agreement, as promoted by the British Franchise Association (the bfa), and the European Code of Ethics for Franchising will contain a clear (Alternative) Dispute Resolution (ADR) clause. This clause will set out how to resolve disputes on a step by step basis.

How to choose? Which ADR step is best? What should I know?

Step 1: Communicate
Lack of communication may often be the root of a problem. Whilst some disputes cannot be avoided, many could be resolved through clear, open and effective communication. A cost effective solution may simply be to open that dialogue with your franchisor and together negotiate and work towards a resolution. This is often the first ADR step.

Step 2: Mediate
Mediation is a private, confidential and flexible form of ADR, facilitating the parties in reaching an agreement where possible. If the parties have agreed to mediate, discussions are carried out on a without prejudice basis. Therefore it is not binding unless the parties, with the help of a neutral third party Mediator, reach an agreement which is then recorded in writing and signed by all parties. A Mediation can include all aspects of the relationship and is not limited to the legal issues. A facilitative Mediation can with agreement become an evaluative Mediation if the parties so choose, where the Mediator can provide a solution which the
parties agree to honour. The franchise relationship can be preserved and it is cost effective. The BFA operate a mediation scheme.

Step 3: Arbitrate
Arbitration is more formal than mediation and an alternative to litigation. The parties agree to resolve their disputes through Arbitration not Court. Whilst it tends to follows a similar structure to Court proceedings, depending on the Arbitration rules applicable, it is a private process, confidential and binding. The parties choose and pay for the process and the arbitrator/s and their expertise. Arbitration is usually less expensive than litigation.

Step 4: Litigate
Litigation/Court proceedings is often the last resort. The parties follow Court Rules. An independent impartial Judge will make a binding judgment. Court fees apply but not for the Judge or venue.

So where does that leave me? Top tips!

• Avoid communication breakdown
• Seek an informal solution
• Negotiate
• Check the ADR clause and steps
• Check the governing law and jurisdiction
• Seek a solution using ADR

For further information and advice, please contact info@boddymatthews.com.