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Discrimination by association

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Last updated 2nd October 2019.

Direct discrimination and harassment can be illegal even if they are against someone associated with the disabled person, e.g. an employee caring for a disabled child. Discrimination by association may also apply to some other types of claim, but not the reasonable adjustment duty or (probably) discrimination arising from disability.

Summary

  • The Equality Act includes direct discrimination because of someone else’s disability, or harassment related to someone else’s disability.
  • Accordingly in Coleman the mother of a disabled child could claim for discrimination if her employer treated her less favourably (or harassed her) because of her child’s disability.
  • This is commonly known as ‘discrimination by association’, or ‘associative discrimination’, though actually ‘association’ does not have to be shown.
  • It does not apply on a claim for reasonable adjustments, nor probably discrimination related to disability. Here the claimant must have the disability.
  • There are sections below on the boundaries of discrimination by association, and case examples.
  • Probably there can also be indirect discrimination ‘by association’. However it is not clear whether this will be important in a disability context. Below Indirect discrimination ‘by association’?
  • It may also be possible to have victimisation ‘by association’. Victimisation is being punished because of a “protected act” such as claiming reasonable adjustments. It may apply even if someone else did the protected act: below Victimisation ‘by association’?

Direct discrimination and harassment

The Equality Act includes direct discrimination because of someone else’s disability, or harassment related to someone else’s disability. The claimant need not have a disability. This is commonly known as ‘discrimination by association’. It stems from a European court ruling:

Coleman v EBR Attridge Law, EU Court of Justice, 2008
The mother of a disabled child alleged that her employer treated her less favourably – and harassed her – because of her child’s disability. The EU court held that under the Framework Employment Directive she could claim direct discrimination and harassment, even though she was not herself disabled.

Before the Equality Act 2010, tribunals held that the employment provisions of the DDA should be re-interpreted so as to comply with this EU court decision. However, since October 2010 discrimination by association is in any event illegal under the wording of the Equality Act 2010.

From the Employment Code, para 3.19:
A lone father caring for a disabled son has to take time off work whenever his son is sick or has medical appointments. The employer appears to resent the fact that the worker needs to care for his son and eventually dismisses him. The dismissal may amount to direct disability discrimination against the worker by association with his son.
There are further examples from Codes of Practice below in Going wider than discrimination by association?

The facts must support a claim for direct discrimination (or harassment). Discrimination arising from disability (below) is probably not enough. If the employer in para 3.19 above would dismiss anyone who spent that much time off work, it is probably not direct discrimination. However if he would allow a parent of a non-disabled child that time off but is not willing to because the child is disabled, that should be direct discrimination by association. There are case examples below.

Direct discrimination or harassment by association are not limited to employment. Although the Coleman case and the Directive only apply in areas related to employment, the Equality Act has extended direct discrimination and harassment by association to other areas such as provision of services and education. Harriet Harman commented that this “is in keeping with the aims of the Equality Bill to simplify and strengthen the law”: Written statement by the Leader of the House of Commons, Harriet Harman (link to Hansard), 2nd April 2009.

Does not apply to reasonable adjustments or discrimination arising from disability

On the wording of the Equality Act, discrimination by association does not apply to the duty to make reasonable adjustments, nor to ‘discrimination arising from disability’. The claimant must have the disability. This may well be consistent with EU law, based on the wording of the EU directive and what the EU court said in Coleman. I am not aware that the courts have actually confirmed this as regards discrimination arising from disability. However they have confirmed that discrimination by association does not apply to the reasonable adjustment duty:

Hainsworth v Ministry of Defence (link to bailii.org), 2014, Court of Appeal
The claimant was a civilian worker with the army based in Paderborn, Germany. She asked for a transfer to the UK where there would be educational and training facilties for her daughter who had Downs syndrome. The army refused and she claimed breach of the duty to make reasonable adjustments, as her daughter was disabled.

The Court of Appeal rejected her claim. The reasonable adjustments duty only applied where the worker was disabled, not someone associated with them. This was supported by the wording of the EqA and of the Framework Employment Directive, and by the ECJ decision in Coleman v EBR Attridge Law. The court also rejected an argument that the position was now different in the light of the UN Convention on Rights of Disabled People.

Note: The Supreme Court subsequently refused an application to refer the question to the EU Court of Justice (pdf, supremecourt.uk), saying the EU court had made clear in the Coleman case that Article 5 on reasonable adjustments is limited to disabled employees.

Outside of the Equality Act, however, an employee has a right to request flexible working (link to gov.uk). Also failure to allow flexibility for a woman to care for a child can potentially be indirect sex discrimination contrary to the Equality Act. It is not clear whether Indirect discrimination by association (below) may be helpful.

Boundaries

Focus on whether the reason is disability, not whether there is ‘association’

The Employment Appeal Tribunal has held that tribunals should not be looking at how far there is an association between the claimant and the disabled person, but whether the discrimination is “because of” the disability (or, presumably, whether the harassment is “related to” the disability).

This is consistent with examples in the Codes of Practice and in Parliamentary statements to the effect that the legislation is not looking at how far there is an ‘association’: below Going wider than discrimination by association?

EBR Attridge Law v Coleman (bailii.org), Employment Appeal Tribunal (EAT), 2009
Following the EU court decision in Coleman v Attridge Law, the EAT decided that the Disability Discrimination Act 1995 (DDA) should be re-interpreted so as to comply with the EU court decision. In deciding how the DDA should now be interpreted, the EAT said that tribunals should look at whether disability was the reason for the discrimination, rather than becoming “bogged down” in discussion of what does or does not amount to an ‘association’.
There is more detail on this case on my page Coleman v Attridge Law>Consider whether disability is the reason, not whether there is ‘association’.

Thompson v London Central Bus, EAT, 2015
This was a victimisation claim (under s.27 EqA), where the claimant argued that action taken against him by the employer was really because of complaints about racism made by other members of his union. An employment tribunal had held (and it was not appealed) that victimisation “on an associative basis”, ie because of a protected act by someone else, is covered by the Equality Act. However an employment judge struck out his claim primarily on the basis that the links or associations between the claimant and the individuals who did the protected acts (ie who complained about racism) were so tenuous that the claimant was not afforded the protection of s.27. The EAT held that – in line with the 2009 EAT decision in Coleman above – the judge had taken the wrong approach. The key issue was not how far there was some association but was the claimant subjected to a detriment because of the protected act.
Note: Victimisation is different from other ‘discrimination by association’ in that one is looking at whether the detriment is because of the protected act rather than because of disability. However the EAT was evidently intending to take the same approach as for discrimination by association generally.

Must be person rather message

The Supreme Court has held that rejecting a message on a cake was not discrimination by association, where there was no objection to any particular person or persons:

Lee v Ashers Baking, Supreme Court, 2018
A bakery in Northern Ireland refused to supply a cake iced with the message “support gay marriage” because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God. The County Court held this was direct discrimination on grounds of sexual orientation, but the Supreme Court overturned that. The bakery’s objection was not to serving that customer, but to promoting that message on the cake. “In a nutshell, the objection was to the message and not to any particular person or persons.”

The Supreme Court said it is not enough that the reason for the less favourable treatment had something to do with the sexual orientation of some people. The court pointed to indications of there being discrimination by association where there was a specific identified person with the protected characteristic. However the court said it would be unwise in the context of this particular case to attempt to define the closeness of the association which justifies a finding of discrimination by association.

Examples of cases in the UK

Some cases where a claim for discrimination by association has succeeded, following the Coleman ruling…

McCorry & others as the committee of the Ardoyne Association v McKeith (bailii.org), Court of Appeal (Northern Ireland), 2016
The claimant was made redundant from her post as part-time advice assistant. She had a disabled daughter who was looked after by a family friend while she was at work. In the months before the dismissal, the claimant’s manager had required her to remain absent from work for some periods to care for her daughter. The employer claimed the redundancy was due to lack of confirmed funding. The tribunal found that the claimant was dismissed because management took the view that her place was at home with her disabled daughter and not at work, a view the tribunal described as “profoundly wrong”. The Court of Appeal upheld the tribunal decision that this was unlawful as direct discrimination by association.

Price v Action-Tec Services, [2013] EqLR 429, Employment Tribunal
A telesales executive had just passed her trial period, but was then dismissed after an absence from work related to her husband’s leukemia. The tribunal said the employer made a stereotypical assumption that, because of the disabilities of (herself and) her husband, the claimant would be an unreliable and under-performing employee. Accordingly there was direct discrimination.
More detail on this case: see Stereotypes and assumptions>Court decisions.
Link:
Disability discrimination by association (link to thehrdirector.com).

MacDonald v Fylde Motor Co Ltd [2011] EqLR 660. Employment Tribunal
The claimant was a vehicle recovery driver, and said he had to stop doing overtime after 5:30pm, in order to care for his disabled stepfather. The claimant was dismissed partly because of his refusal to do overtime. The tribunal held that the burden of proof had shifted to the employer, who had failed to show that it would have done the same with an employee who needed to leave at 5:30pm for an evening class, or to collect a child from the nursery, for example. Accordingly there was unlawful direct discrimination under the DDA on grounds of the stepfather’s disability. The tribunal also found there was unlawful harassment related to the disability.

…and one in which the claim failed:

Perrot v Department for Work and Pensions [2012] EqLR 90. Employment Tribunal
The claimant had taken special unpaid leave to look after a disabled sister. Under the employer’s policy, holiday entitlement did not accrue during this leave. The claimant argued direct discrimination under the DDA, saying that in not accruing holiday entitlement he had been treated less favourably on the ground of his sister’s disability. The claim was held to be out of time, but the tribunal said it would have failed anyway. Other employees taking this leave to care for non-disabled people such as children or elderly parents would also not accrue holiday entitlement. The claimant had not suffered any less favourable treatment.

These cases illustrate that, as disscussed above, the facts must support a claim for direct discrimination (or harassment). Where the claimant has been absent, if the employer would treat in the same way someone who was absent to the same extent for a reason not involving a disabled person, there is not likely to be a claim for direct discrimination by association.

Going wider than discrimination by association?

Codes of Practice

The Employment Code of Practice at paragraph 3.20 gives further examples of where less favourable treatment could be ‘because of’ disability:

“Direct discrimination because of a protected characteristic could also occur if a worker is treated less favourably because they campaigned to help someone with a particular protected characteristic or refused to act in a way that would disadvantage a person or people who have (or whom the employer believes to have) the characteristic. The provisions of the Act on instructing, causing or inducing discrimination may also be relevant here (see paragraphs 9.16 to 9.24).”

Example:
An employer does not short-list an internal applicant for a job because the applicant – who is not disabled himself – has helped to set up an informal staff network for disabled workers. This could amount to less favourable treatment because of disability.

Employment Code of Practice at paragraph 3.20.

The Services Code has a similar statement – and examples on services/associations – at para 4.19. Similarly para 4.19 of the Technical guidance on further and higher education.

Background and Parliamentary statements

The Equality Act 2010 wording to cover discrimination by association or perception does not say there needs to be some ‘association’. It talks of discrimination or harassment ‘because of’ or ‘related to’ disability. There were calls, including from the Equality and Human Rights Commission, for the legislation to be clearer in expressly mentioning discrimination by association and perception. The Government rejected an amendment to this effect in the House of Commons Committee (col 251-256, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)). In doing so, the Solicitor General gave examples of instances, going beyond association and perception, that the Government intended the wider wording to cover:

“…The ‘because of’ turn of phrase in clause 13 is broad enough and is intended to be broad enough to cover much more than just cases in which the less favourable treatment is due to the victim’s association with someone who has the characteristic or because the victim is wrongly thought to have that characteristic. The formulation is intended to and does cover cases, for instance, of less favourable treatment because of a refusal to comply with instructions to discriminate. It is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time.

‘Direct discrimination’ has a number of forms – a lot of different forms. Even after the Bill, what the definition covers will continue to evolve through the case law. That is really the point. We do not want, by specifying particular kinds of direct discrimination, to imply that we are excluding kinds of discrimination that might come about in a situation that we have simply not foreseen when setting out the clause. So, we favour what we see as a broad formulation.”

This seems to be consistent with Employment Appeal Tribunal decisions focusing on whether discrimination is because of disability, rather than how far there is an ‘association: see above Focus on whether the reason is disability, not whether there is ‘association’.

Relevance to stammering?

How important for stammering is discrimination by association? Perhaps not very. However, it should apply for example to harassment at work targeted at someone who does not stammer for being friends with a colleague who stammers, or if a parent who has to take their child to speech therapy were harassed or allowed less flexibility than other parents.

What may be more relevant to stammering is the related issue of discrimination or harassment due to ‘perceived’ disability.

Indirect discrimination ‘by association’?

The EU Court of Justice has held that a person can claim indirect race discrimination even though she herself does not have the relevant racial or ethnic background. This case may well apply to disability in principle. However it is unclear whether and if so how it will be important in a disability context: see ‘My comments’ on the CHEZ case.

CHEZ v Komisia za zashtita ot diskriminatsia, EU Court of Justice, 2015
An electricity company placed electricity meters several meters high in districts inhabited mainly by persons of Roma origin. This was to prevent tampering etc but also it meant they were too high up to read. The claimant was not Roma herself but lived in such a district. The EU court held she could claim for either direct or indirect race discrimination, even though she was not Roma.

Victimisation ‘by association’?

Victimisation protects someone if they are ‘punished’ for doing a protected act such as claiming for reasonable adjustments. An employment tribunal (though not a binding precedent) has held that the protected act need not be by the claimant; it can be by someone else. It said this is required by EU law.

This is different from discrimination being because of someone else’s disability, but it is a related issue.

More Victimisation>Victimisation ‘by association’.


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