Posted by Matthew Hendra, Senior Associate
Discrimination by association
A couple of recent discrimination cases have dealt with employees who do not have a “protected characteristic” (age, marriage and civil partnership, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation or disability). These employees have alleged that they have been discriminated against because of their association with someone who does. This is called associated discrimination.
In the case of Truman v Bibby Distribution Ltd, Mr Truman was dismissed after he had told his employer that he would be increasing the time he spent with his daughter, due to her having cystic fibrosis. His dismissal was on the grounds that “his heart was not in the business” and his primary customer was dissatisfied with his work. The tribunal was suspicious of the reason for Mr Truman’s dismissal. There was no performance improvement process in place, and no indication from management or his primary customer that either were dissatisfied with his performance. Mr Truman successfully claimed associative disability discrimination, on the basis that he was dismissed because his daughter is disabled.
In a Bulgarian case (CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia), the European Court of Justice (ECJ) accepted that associative discrimination also applies in cases involving indirect discrimination. Indirect discrimination is where a provision, criterion or practice which is applied to all has an adverse impact on particular groups. In this case the ECJ accepted that a non-Roma who ran a shop in a predominantly Roma area of Bulgaria had been discriminated against by policies applied in Roma areas. The shop owner argued that she ‘identified’ with Roma based on her association, and the ECJ agreed.
While employers will be aware that employees cannot bring unfair dismissal claims until they have been employed for 2 years or more, certain employment claims like discrimination do not require a qualifying period of service. The Bibby case shows that it’s important for employers to carefully consider the reason for dismissal, to have a genuine belief in the reason for dismissal, and evidence this with appraisals, customer feedback etc. The CHEZ case has yet to be interpreted by the UK courts, but there is an argument that the case will expand the ambit of indirect discrimination cases. For example, will men with child-caring responsibilities now be able to bring a sex discrimination claims based on their “association” with women with similar responsibilities?
Employees’ personal circumstances are key when considering the risks associated with dismissing or disciplining, or when applying policies to the workplace. As Bibby Distribution found out, the sudden dismissal of an employee with caring responsibilities who is performing satisfactorily may raise suspicions of associative disability discrimination.
If you would like to discuss this issue, or any other employment law matter, please get in touch with members of our specialist Employment & HR team.
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