Subscribe to our fortnightly newsletter. In this way, you can help to protect your organisation from any claim for unlawful discrimination before a tribunal. DavidsonMorris Ltd t/a DavidsonMorris Solicitors is a company Registered in England & Wales No. This is known as discrimination by association; Here is an example of discrimination by association: An employer disciplines a woman because she has had to take time off to care for her disabled child. Associative discrimination arises when someone is treated unfavourably on the basis of another’s protected characteristic. 6183275 Under the 2010 Act these characteristics can include any of the following: In particular, you should not discriminate against someone either because they possess one of these characteristics, or because you believe they possess one of these characteristics, otherwise known as discrimination by perception. For example, an employer who does not short-list an internal applicant for a job because the applicant, who is not disabled, has helped to set up an informal staff network for disabled workers, could amount to less favourable treatment because of disability. However, the Court of Appeal rejected her claim, finding that the reasonable adjustments duty only applied where the worker was disabled, not someone associated with them. They introduce them to their partner, who is a person of colour. An outdoor centre provides a variety of activities from walks on … The wording of the Equality Act seems clear that a claim of indirect discrimination by way of association would not be allowed. Browse our resources to find out how we built diversity and inclusion into every step of the hiring process or feel free to request a tour of the platform.‍. For example, a person can be discriminated against because of their association with a person who has a protected characteristic, or because they are wrongly perceived to have one, or It has been a long established principle of equality law that it is unlawful to directly discriminate against or harass one person because of certain characteristics, such as the colour or religion, of another person. Definition discrimination by association. For example, it remains unclear whether it is possible to bring claims for associative discrimination where the discrimination is indirect. The employee encounters their line manager while out shopping. However, if you do find yourself facing a complaint of associative discrimination, you should always seek expert legal advice from an employment law specialist at the earliest possible opportunity. Well, if an employee can work from home, they should be allowed to. This would be counted as direct disability discrimination. Although the issue of associative discrimination is quite rare, it does happen, and potentially represents a growing area of risk for employers, especially since there are relatively few examples of how the courts will deal with different types of conduct in the context of each of the relevant protected characteristics. Similarly, where an employee is refused a promotion, or suffers some other detriment, because they are in a relationship with someone of a different ethnic origin or religion, this could be construed as associative racial discrimination. This is discrimination by association. Even if the employee themselves is not gay, they could still be a victim of discrimination by association if they were treated less favourably because of their friendship with people who are gay. However, to claim discrimination related to a reasonable adjustment, the claimant must have the disability. If you have to make somebody redundant, make sure you follow a fair procedure. Associative discrimination can occur in various ways, for example, where the employee, worker or job applicant has a relationship of parent, son or daughter, partner, carer or friend of someone with a protected characteristic. Associative discrimination could occur if: A student, whose child has The Employment Appeal Tribunal (EAT) held that, even though she was not herself disabled, she could claim direct discrimination and harassment. If an employee decides to ‘shield’ because a member of their household is classified as vulnerable, employers may be acting unlawfully if they treat that employee less favourably. Want to see more content like this? This was the case that resulted in discrimination by association being added to UK  legislation under The Equality Act 2010. It is mandatory to procure user consent prior to running these cookies on your website. If working from home is not an option, you may want to consider all options before looking at measures such as unpaid leave - as you might end up in hot water! Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. [4] However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability. But opting out of some of these cookies may have an effect on your browsing experience. To prove direct discrimination, you don’t actually have to prove that others (without a protected characteristic or an association to someone with one) are being treated better than the victim. Previous Next. In the case of Coleman, the claimant alleged the following: The nature of the allegations in Coleman set out just some of the types of unfavourable treatment that may be construed as direct discrimination in the context of a worker by association with their disabled child. Indirect Discrimination. Although claims based upon associative discrimination are not the easiest for an employee to prove before an employment tribunal, especially in proving that any detriment they suffered is caused by the protected characteristic of another individual, you should still explore exactly what has happened and whether there is any merit in the allegations made. The nine protected characteristics under The Equality Act (2010) are as follows: Generally speaking, discrimination occurs when someone is treated less favourably because they possess at least one of these characteristics. Necessary cookies are absolutely essential for the website to function properly. An employee could be discriminated against due to their connection with (or support of) gay friends. These cookies will be stored in your browser only with your consent. It can also arise in relation to various different types of conduct. Although the employee is able bodied, their less favourable treatment is due to their relation to someone with a protected characteristic - in this case a disability. Management had asked them to remain absent from work to care for their daughter. Even though John himself isn’t gay, his friends are and the law protects against the discrimination of sexual orientation. For example, in the early case of Race Relations Board For instance, it might apply to the husband of a disabled individual discriminated against based on his spouse’s disabled status. As it stands, employers are duty bound to make reasonable adjustments for disabled employees - this does not extend to employees associated with a disabled person. By virtue of the Equality Act 2010, all employers are under a statutory duty not to discriminate against anyone who possesses a protected characteristic. For example, if you're discriminated against because your son is gay. It has to be said, from the claimant’s perspective, complaints based upon associative discrimination are not the easiest to bring before the employment tribunal, where it will often be difficult to evidence that any unfavourable treatment is caused by the protected characteristic of another individual. Example of indirect discrimination. By submitting, you agree to our Privacy Policy. By law, you should not treat any member of staff or job applicant unfairly by reason of a protected characteristic, such as their age, gender, a disability, race or religion. For help and advice, speak to our experts. These cookies do not store any personal information. Whilst most workplace “banter” is harmless, it could affect employees who are associated with someone with a protected characteristic - and therefore cause offence. Although there’s no explicit definition to point to, the Equality Act Code of Practice uses examples such as parent, spouse, partner, carer or friend. Direct discrimination can also occur because of association with someone with a different kind of protected characteristic, and in relation to any conduct that results in a worker being treated unfairly in relation to their employment terms and conditions, pay and benefits, promotion and transfer opportunities, training and recruitment, as well as dismissal and redundancy. Examples of discrimination by association Racial discrimination by association. Discrimination by association (otherwise known as associative discrimination) is when someone is discriminated against because of their association with a person/people with a protected characteristic. A landlord refuses to rent an apartment to you because your co-tenant is a woman with a young child. This is commonly known as ‘discrimination by association’. Associative Discrimination Associative Discrimination refers to discrimination based on an individual's association with another person belonging to a relevant protected group. Although not required, any employer who considers themselves inclusive should consider making adjustments for both disabled employees and anyone associated with a disabled person (if they’re in need of adjustments). Enrique, a Spanish national living in the UK, applies for an account … Discrimination by association is also very relevant in the current COVID-19 pandemic. However, in the case of pregnancy and maternity, a worker treated less favourably because of association with a pregnant woman, or a woman who has recently given birth, may instead have a claim for sex discrimination. Statutory Employment Payments Changes 2021-2022. As such, it is vital for employers to ensure that they are fully aware of how allegations of associative discrimination can arise, and that those responsible for managing their workforce understand the concept of discrimination by association and are trained in this area of risk. Historically, association discrimination lawsuits have been uncommon, but they are on the rise. It was found that this was an act of direct discrimination on the behalf of the employer. EurLex-2 53 – General statements regarding ‘ discrimination by association ’ can be found above in … If an employer makes it mandatory for employees to work a given number of Saturdays per month, this would be indirect discrimination on the grounds of religion - since Saturday is a religious day in Judaism (putting Jewish workers at a disadvantage). By way of example, where an employer or manager treats a heterosexual worker less favourably because they have been seen socialising with someone who is gay, this could be classed as direct sexual orientation discrimination against the worker because of their association … This issue arose in the decision in Hainsworth v Ministry of Defence [2014] EWCA Civ 763. Associative discrimination comes about when someone is treated unfavourably on the basis of another person's protected characteristic. The employer had made a stereotype-based assumption that because of her husband’s illness, she would be unreliable. You also have the option to opt-out of these cookies. Equal Employment Opportunity Commission’s (EEOC) interest in highlighting and offering guidance on the different forms of this discrimination. This association isn’t even required to be permanent - the relationship needn’t be close nor personal. It was found that the employer felt that their place was at home with their disabled daughter and not at work - a stance that was ruled as being unlawful. Greater protection for “discrimination by association” will have an impact upon institutions. For example, someone is not offered a promotion because they're a woman and the job goes to a less qualified man. Under the Equality Act 2010, where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, all employers are under a duty to take reasonable steps to avoid the disadvantage. Associative discrimination is the act of discriminating against an individual because of an association with another person who has a protected characteristic under the Equality Act 2010. For example, anyone treated less favourably because they were seen with or campaigned on behalf of someone with a protected characteristic could make a case for discrimination by association. This includes not treating them unfairly because of any association with another individual who possesses one of these, or any other, protected characteristic. It is especially important to remember that whilst a claim for associative discrimination requires the claimant first to establish facts that amount to a prima facie case, section 136 of the Equality Act 2010 specifically provides that, once there is a clear basis upon which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof shifts to the employer to prove a non-discriminatory explanation. We also use third-party cookies that help us analyze and understand how you use this website. Victimisation by association when being punished for a ‘protected act’, such as claiming reasonable adjustments even if someone else did the protected act and there could possibly be a claim for indirect discrimination by association. Following the landmark case of Coleman v EBR Attridge Law (2008), the European Court of Justice (ECJ) held that a person can be discriminated against by their association to another individual with a protected characteristic, for example a disability. For example an employee fired for volunteering at an hiv aids clinic may have a cause of action under the ada for association discrimination. Associative racial discrimination example An employee at work is due to receive a promotion at work. That said, you must still be careful not to treat an employee associated with someone with a disability less favourably, for example, by selecting them for dismissal or redundancy simply because they are the carers of a disabled person. The case of Coleman pre-dates the Equality Act 2010, the wording of which now makes it clear that associative discrimination is prohibited, although the comments made by the EAT still provides useful guidance in assessing how a tribunal is likely to approach this issue. Indirect discrimination is a less obvious type of discrimination than direct … An employee with a disabled daughter was made redundant. Below are several examples, to illustrate the point. The Equality Act recognises that discrimination can arise in a number of different ways including: Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. ACAS Early Conciliation Form (Need Help? In Coleman, the claimant was the clear victim of discrimination where her child’s disability was simply the cause of it. In the event that an employee makes a complaint that s/he is being treated less favourably by reason of their association with someone with a protected characteristic, you should, as with any other allegation of discrimination, investigate the matter fully and promptly. But it’s still a grey area in terms of whether or not a non-pregnant person can claim maternity discrimination. The wife claimed maternity discrimination. Marriage and civil partnership and pregnancy and maternity are not covered by the legislation. Book Prev / Next Navigation. This is a form of direct discrimination and could relate to the protected characteristic of a person’s friend, spouse, partner, parent or anyone with whom they associate. For example, a candidate who has been told she is getting a job, and then suddenly, she is deselected after revealing she has a severely disabled child with complex care arrangements. This category only includes cookies that ensures basic functionalities and security features of the website. Although the parent wasn't disabled, they claimed they had nonetheless been a victim of direct discrimination. In particular, it was stated that: “What matters is that the putative victim has suffered adverse treatment on a proscribed “ground”, namely disability, and the fact that the disability is not his [or her] own is not of the essence” (para 16). By having in place a fair and easily accessible grievance procedure, and by dealing with the matter sensitively and professionally, this will provide both you and the employee with the chance to resolve the matter without recourse to legal proceedings, and to restore a positive working relationship for the future. Working closely with our specialists in HR, we can offer a full support service from staff training, through to developing an organisational policy to defending any claims that may arise. Example of Discrimination by Association If someone is being harassed at work because one of their family members is gay, they are being discriminated against simply because they are related to a gay person. Although this was just a tribunal decision, it goes to show that there is a claim to be made when someone is mistreated because of their connection to a pregnant person. This is called discrimination by association.

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