Tue, 01 Jul 2014
Russell Holland considers the impact of the recent decision of the Court of Appeal in Hainsworth v Ministry of Defence  EWCA Civ 763 and Russell Bailey highlights an ET decision where it has been held that associative discrimination extends to claims of victimisation.
In Coleman v Attridge Law  IRLR 722, following a reference from the London South Employment Tribunal, the Court of Justice of the European Communities [“ECJ”] held that an employee, who was not himself disabled but was the principal carer for his disabled child, could bring a claim for direct discrimination or for harassment if the reason for the discriminatory treatment or the harassment was the disability of the child.
The Equality Act 2010 now expressly provides for associative discrimination as a cause of action for direct discrimination and harassment in relation to protected characteristics. This article considers the extent to which associative discrimination might extend beyond direct discrimination and harassment.
Is there a duty to make reasonable adjustments where the disability is that of a person associated with the employee ?
It is well known that the Equality Act 2010 protects employees from disability discrimination in that it prohibits direct and indirect discrimination, victimisation and harassment. In addition, employers have a duty to make “reasonable adjustments” where a “provision, criterion or practice” “puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.” This applies to both current and potential staff. While the ECJ in Coleman held that there could be discrimination if the victim of the discrimination was not disabled but was associated with a person who was disabled, this did not extend to the duty to make reasonable adjustments.
That issue has now been determined by the Court of Appeal in Hainsworth. The Claimant was in the armed forces in Germany. Her daughter had Down’s Syndrome and was disabled. Her daughter’s needs could not be met in Germany and a request for a transfer to the United Kingdom where her daughter’s needs could be met was refused. She argued that this was a “provision, criterion or practice” which placed her at a disadvantage because of her disabled daughter and as such there was a duty to make reasonable adjustments. On an analysis of Article 5 of the Council Directive 2000/78, the Court of Appeal concluded that “the obvious and entire focus of Article 5 is upon provisions to be made by an employer for his disabled employees, prospective employees and trainees.” As such there was no duty to make reasonable adjustments where the employee was not disabled, but was associated with a disabled person.
For employers, this means that an employee cannot bring a claim for failing to make reasonable adjustments where the employee is not disabled. This would include employees who are not disabled but care for disabled relatives. If a claim is made consideration should be given to applying to strike out the claim. However, while there is no duty to make reasonable adjustments, employers may still wish to consider whether or not to make such adjustments as a matter of good practice. Further, the employee still has a right to make a request for flexible working and any such request must be carefully considered.
Can an employee bring a claim for victimisation where the protected act is that of a third party ?
Sections 13 and 26 of the Equality Act 2010 (direct discrimination and harassment respectively) provide that a cause of action arises when a person is subject to prohibited treatment “because of a protected characteristic” (direct discrimination) and “related to a relevant protected characteristic” (harassment). It is not necessary that the protected characteristic be possessed by the recipient of the prohibited treatment. It is sufficient that there is a causal link between the treatment and the protected characteristic of some person. Obviously the closer the relationship between the possessor of the characteristic and the victim, the more readily will an inference of a causal link be drawn.
Section 27 of the Act (victimisation) does not require that any person has a protected characteristic but it does require that the victim has done (or it is believed he has done or may do) a protected act. It achieves this by the clear statutory wording:
(1) A person (A) victimises a person (B) if A subjects B to a detriment because –
(a) B does a protected act, or
(b) A believes B has done, or may do, a protected act.
The definition of protected act in S.27(2) encompasses the making or assisting with the pursuit of allegations of breaches of the Act.
The express wording does not enable B to bring a claim where he has been subjected to a detriment by A because of a protected act of C.
The IDS Employment Law Handbook provides at paragraph 19.9:
“For the sake of completeness, it is worth adding that the protection under S.27 EqA is confined to those who have themselves done, or were intending to do, a protected act. The section’s wording is not wide enough to cover an individual who claims to have suffered a detriment because of his or her association with someone who has done, or may have intended to do, a protected act. “Victimisation by association” is therefore not covered.
Thompson v London Central Bus Company 2300125/14
Mr Thompson was a bus driver who said he had overheard a conversation in which it had been alleged that management had, some 20 years earlier, conducted a campaign to get rid of certain employees who had made allegations, including allegations of racism, against management. He contended he had repeated the conversation he had overheard to a manager who, shortly thereafter, had instigated disciplinary proceedings against him which had resulted in his dismissal but subsequent conditional re-instatement. He contended that he was associated with the protected acts (the allegations of racism) because he had heard about them and therefore had knowledge and that, coupled with the timing of events, established a causal link. The Respondent produced a clear paper trail demonstrating that the disciplinary action was attributable to Mr Thompson’s contravention and abuse of the Health and Safety requirements concerning the wearing of Hi Visibility jackets.
Employment Judge Spencer decided at a preliminary hearing that, although domestic legislation did not provide for victimisation by association, Council Directive 2000/43 “The Racial Discrimination Directive” did not provide for such a limitation and she felt able to re-word S.27(1)(a) to read:
“A person (A) victimises another person (B) if A subjects B to a detriment because-
(a) of a protected act”
Employment Judge Spencer noted that there had been two previous first instance decisions, one at Birmingham ET (1309240/12) and another at London Central ET (2303124/09 and 2353465/09) in which tribunals had accepted that claims of associative victimisation could be pursued although, of course, they did not bind her.
However, Employment Judge Spencer, considered that the degree of contended association was loose and therefore causation would be difficult to establish and she listed the matter for a further hearing to consider a strike out or a deposit order. In due course, Employment Judge Hall-Smith struck out the claim as having no reasonable prospect of success.
It is a matter for regret that there is no appellate decision on the issue of associative victimisation and is now unlikely to be one arising from the case of Thompson. There is no doubt that the Equality Act 2010 does not, of itself, enable a claim of associative victimisation to be brought. The draughtsman could easily have extended it in that way, following Coleman v Attridge, if that was the intent. Even if these three first instance decisions have correctly applied the Directive to interpret the Equality Act 2010 so as to give it a meaning wholly different to that expressed, it remains the position that causation will be difficult to establish unless the relationship between the person performing the protected act and the victim is close.