Associative discrimination: what employers need to know

    associative discrimination

    IN THIS ARTICLE

    The Equality Act 2010 was introduced to protect employees from discrimination. The Act protects 9 characteristics that employers, businesses and organisations cannot discriminate against. Any form of discrimination — whether direct, indirect, victimisation or harassment — against these characteristics is unlawful.

    The nine protected characteristics in the 2010 Act are:

    • Age
    • Disability
    • Gender reassignment
    • Marriage or civil partnership
    • Pregnancy or maternity
    • Race
    • Religion or belief
    • Sex
    • Sexual orientation

    Essentially, the Equality Act provides that people cannot be treated unfavourably for having one of these characteristics. For example, it would be direct discrimination not to hire someone because they are pregnant.

    However, discrimination can still occur against someone without one of the nine characteristics outlined in the 2010 Act. This is associative discrimination.

    In this guide, we’ll explore associative discrimination, give some examples, and give tips on the steps you can take to prevent associative discrimination claims.

    What is associative discrimination?

    Associative discrimination is when an employee is discriminated against because someone they know or are associated with is protected under the Equality Act 2010. It could be because a spouse, partner, child, friend, or anyone else they associate with falls under one of these.

    It’s important to note that not all of the 9 characteristics outlined in the 2010 Act apply to associative discrimination. Employers cannot associatively discriminate against pregnancy, maternity, marriage or civil partnership.

    Nonetheless, often in cases where someone has been discriminated against because a woman they’re associated with is pregnant or has given birth recently, it can be treated as associative discrimination against sex.

    Associative discrimination was confirmed in the case The Coleman v Attridge Law in the European Court of Justice. In this case, a mother who cared for her disabled child was entitled to bring a claim for discrimination against her employer if she was treated less favourably due to her child’s disability.

    Employees who have been associatively discriminated against may bring a claim against you, so you must protect yourself against it. Claims can be extremely costly for your business and can seriously harm your reputation.

    Furthermore, protection against discrimination applies to both employees and potential employees, so they don’t have to have served any time with you to bring a claim.

    Even a candidate for a role could experience discrimination if the employer didn’t hire them or didn’t interview them if the reason was that they have one of the 9 characteristics in the 2010 Act.

    Examples of associative discrimination at work

    There are many possible situations in which associative discrimination could arise. Here are just a few scenarios where associative discrimination could occur:

    Associative disability discrimination

    A paralegal applies for a role in a law firm for a full-time 9-5 job. She also cares for her disabled sister and is turned down for the job because the employers fear she may have to take time off to care for her.
    While the candidate does not fall under one of the characteristics outlined in the 2010 Act, her sister does. Since she is associated with her through being her carer and she has been refused the role on these grounds, the employers have discriminated against her by association with her disabled sister.

    Associative sexual orientation discrimination

    A marketing executive meets her boss when out at a bar with her friend, who is a member of the LGBTQ+ community. On Monday at work, she notices her boss starting to treat her differently. While she usually speaks to her in the workplace canteen, her boss begins to ignore her.

    Over time, she stops receiving invitations to some important meetings, and she fears this will put her out of the running for a promotion.

    Being a member of the LGBTQ+ community is a protected characteristic under the 2010 Act. Since the employee doesn’t possess this characteristic herself, her boss is treating her differently because she is friends with people who are, making this a case of associative discrimination.

    Associative racial discrimination

    At a work event where employees are allowed to bring a plus one, an analyst brings his partner, who is a person of colour. The analyst is going for a promotion at work. After the work event, he notices his boss start to treat him differently, and he is later turned down for the promotion. He feels there was a direct correlation between when his boss started treating him differently and him meeting his wife.

    The analyst isn’t discriminated against because of his race but because of his wife’s, which is a protected characteristic under the 2010 Act.

    Associative age discrimination

    A woman goes for an interview for a job as a receptionist in a hotel. She brings up the fact she is a carer for her elderly mother, but that her mother has carers to assist her during the day. The woman is exceptionally qualified and is confident she performed well in the interview but is turned down for the role without any explanation.

    She comes to the conclusion that the only reason she wasn’t offered the job was that they thought she might be unreliable because of her caring responsibilities.

    If this claim were found to be accurate, the company would have discriminated against her by the association. This is because age is a protected characteristic, and her mother’s age is the ultimate reason why she wasn’t offered the role.

    Associative gender reassignment discrimination

    An administrator shared the fact that his son was undergoing gender reassignment surgery, which sparked a discussion about the issue. He heard offensive and rude comments about his son, and he has been treated unfavourably since the discussion. He also noticed that he had started to be excluded from social events.
    While his son has nothing to do with his work, he has been treated differently because of his son’s gender reassignment. Since this is one of the protected characteristics in the 2010 Act, the administrator could make a complaint of associative discrimination.

    Unlawful discrimination risks

    Associative discrimination is a form of direct discrimination, so you must take it seriously. If an employee within your business experiences associative discrimination, they could bring a claim against the company.
    Not only can the result of the discrimination claim be financially detrimental to your business, and it could also seriously harm your reputation. A company known to have been discriminatory will have difficulty finding talented employees or people to invest in them.

    The process for the claim is for the employee to take the claim to the employment tribunal. If the tribunal finds the claim valid, the employer may have to compensate the employee.

    Following the decision of the Employment Tribunal, either the employee or the employer can appeal against the decision. However, this can only be done if they appeal against a point of law or if the correct procedures were not followed. Appeals cannot be made simply because one of the parties is unhappy with the decision.

    Is there a duty to make reasonable adjustments to avoid associative discrimination?

    As the law stands, employers are under no obligation to make reasonable adjustments to avoid associative discrimination. This was confirmed in the case of Hainsworth v Ministry of Defence, where the Court of Appeal found that employers have no obligation to make reasonable adjustments for non-disabled employees who are associated with a disabled person.

    In regard to disability, the provisions of the Equality Act 2010 were included to implement the provisions of the Equal Treatment Framework Directive (the Directive). Specifically, Article 5, provided that:
    “In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodations shall be provided. This means that employers shall take appropriate measures where needed in a particular case, to enable a person with a disability to have access to, participate in or advance in, employment, or to undergo training unless such measures would impose a disproportionate burden on the employer.”

    While the 2010 Act states that employers must make reasonable adjustments for disabled employees, this is not required for people who are associated with those with disabilities.

    Ms Haisnworth was employed by the Ministry of Defence and was based in Germany. Her child had downs syndrome and she requested to be transferred to the UK so that she could care for her daughter. Her employer refused the transfer. Ms Hainsworth brought a claim to the employment tribunal on the grounds that her employer was obligated to make reasonable adjustments because her daughter had a disability under the 2010 Act.

    The Employment Tribunal found that while employers were under an obligation to make reasonable adjustments for disabled employees or applicants, they were not under this obligation for people who are associated with disabled people. Ms Hainsworth appealed this decision to the Employment Appeal Tribunal, but the appeal was unsuccessful.

    This decision highlights the complicated nature of associative discrimination. It has serious consequences but does not follow the same rules as discrimination set out in the 2010 Act.

    Advice for employers

    The first step to reducing the risk of an associative discrimination claim is to ensure you and your HR team fully understand the 2010 Act and the protected characteristics.

    Employers also have to understand how and why an employer may make a claim of associative discrimination. Once you and your HR teams are fully up to speed on the 2010 Act and the possible claims that could arise in an associative discrimination claim, you should make sure the following is in place to keep your organisation protected against associative discrimination:

    Create clear policies

    Employers must create transparent policies about associative discrimination available to all employees. You should ensure that employees are aware of these policies during the onboarding process.
    The policies should set out the repercussions for breaking the policies and outline a complaint procedure. You should ensure your complaint procedure is simple so you’re not criticised for making it too difficult to bring a discrimination claim, which could also reflect poorly on you as an employer.
    It would be best if you also created policies that prevent associative discrimination when hiring staff, considering people for promotions, handling disciplinary actions or grievances, and when dismissing an employee.

    Provide training

    Once clear policies are in place, you should provide regular employee training sessions. Doing this ensures everyone is well aware of associative discrimination and the way in which claims could be brought. It also provides extra defence for you as a business if you can show that you have provided sufficient training to employees regarding the issue.

    Management staff should have extra training when it comes to discrimination and associative discrimination. This is because complaints are often brought about due to the actions or behaviour of a senior staff member rather than someone of the same level.

    Moreover, an employment tribunal would be more likely to look favourably upon you if you have evidence of taking associative discrimination seriously and have taken steps to ensure it doesn’t exist in your workplace.

    Create a fair and thorough investigation process

    Make sure you create a fair and simple investigation process that thoroughly looks into discrimination complaints. You should make sure employees are aware that their claim is being dealt with in a sensitive way and without bias.

    A thorough investigation process also increases the chances of you being able to address the issue before the employee takes it to the Employment Tribunal. Moreover, it helps you avoid any instances of discrimination from occurring again.

    While associative discrimination can be challenging to prove, you should not rule anything out simply because you don’t have evidence. You should thoroughly investigate what happened and obtain a clear account of the facts to ensure there could be no claim of associative discrimination. Or, if there is, take reasonable steps to mitigate the situation.

    Doing this will not only reduce the chances of the employee taking legal action but also improve the culture in the workplace.

    Associative discrimination FAQs

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    Legal disclaimer

    The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

     

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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