An employment tribunal had held (and it was not appealed) that victimisation “on an associative basis”, ie because of a protected act (eg a discrimination claim) by somone else, is covered by the Equality Act. The EAT held the key issue is not how far there was some association between the claimant and the person who did the protected act, but was the claimant subjected to a detriment because of the protected act.
Employment Appeal Tribunal, 2015, www.bailii.org/uk/cases/UKEAT/2015/0108_15_2007.html
The claimant was dismissed on the ground that he had given away to another employee a high-visibility vest issued by the employer. An internal appeal changed this to a 21-day unpaid suspension and final written warning.
He claimed victimisation, arguing that the employer’s action against him was really because of complaints about racism made by other members his union.
A problem he had with this claim was that s.27 Equality Act says the victimisation must be because of a protected act (for example a discrimination claim) by the claimant. His case was that he was associated in the mind of the employer with others who had in the past committed such acts. However there was a preliminary tribunal hearing to consider whether a claim of victimisation “on an associative basis” was possible. The employment tribunal held that section 27(1)(a) has to be read as providing simply “because of a protected act”, in order to ensure compliance with EU obligations (presumably taking into account the Coleman case). Accordingly his claim of victimisation could rely on protected acts of others. There was no appeal against that judgment.
However there was then a further preliminary hearing, which struck out his claim primarily because the judge thought that the links or associations between the claimant and the individuals who did the protected acts were so tenuous that the claimant was not afforded the protection of s.27.
Held by the EAT: his claim should not be struck out – it should be allowed to proceed to a full hearing. The issue was not how far there were links between the claimant and the individuals who did the protected act. The issue was whether the claimant was subjected to a detriment because of the protected act.
The principal reason for the employment judge striking out the claim was that he thought that the links or associations between the claimant and the individuals who did the protected acts were too tenuous for there to be a claim for victimisation under s.27 EqA. This in turn was linked to his doubt that membership of the same trade union could give rise to the kind of association necessary for the purposes of s.27.
The EAT said the judge in the second preliminary hearing was required to be loyal to the judgment in the earlier hearing. Accordingly the question was whether the claimant’s treatment was by reason of the protected acts done by others. This test required no particular relationship to be established between the claimant and the others. It was a question of fact for the employment tribunal whether the employer subjected the claimant to treatment by reason of the protected acts of others. The association might be wholly or in part in the mind of the employer.
The EAT said “association” is not a concept in itself found in European legislation. The issue is not whether there is a relationship of some particular kind, but whether in the mind of the alleged discriminator the protected act of a third party was part of the reason for the treatment of the employee. The position was, said the EAT, explained in a previous EAT decision:
“16. I appreciate that my formulation does not use the language of “association”. Although the phrase “associative discrimination” is a convenient shorthand, on my reading of the decision of the Court of Justice the concept of association is not central to its reasoning. 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 own is not of the essence: see para 50 of the judgment … In practice it may be uncommon for an employee to be discriminated against on the ground of the disability of anyone with whom he is not in some sense “associated”, indeed closely associated, but the fact of such association is not necessary to the unlawfulness; and I should prefer to avoid language which encourages tribunals to become bogged down in discussion of what does or does not amount to an “association”, when that should not be the focus of the inquiry. (I should also note that I have used the phrase “by reason” that rather than “on the ground of” purely because it reads less clumsily: the two phrases are interchangeable in this field: see Nagarajan v London Regional Transport …)”
Attridge Law v Coleman (bailii.org), EAT, 2009. This was the decision in which the EAT held the Disability Discrimination Act 1995 should be reinterpreted to comply with the EU Court of Justice decision in Coleman v Attridge Law.