What is associative discrimination?
The equality act 2010 defines different types of discrimination that can occur against an individual which involve one or more protected characteristics. The ‘protected characteristics’ include age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity ;race, caste, ethnicity, national origin or skin colour; religion or belief; sex; sexual orientation. This applies to the operation of businesses and charities.
One type of discrimination outlined in the equality act 2010 is Direct Discrimination, the definition of which can be found in section 13 as ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’ Associative discrimination is a form of direct discrimination and occurs when someone suffers discrimination as a result of their association with someone else who has a ‘protected characteristic’. An example of this would be where an employer discriminates against a white employee because they have a black husband or wife would be an obvious case of associative discrimination. It used to be the case that those complaining of direct discrimination concerning age, gender reassignment, sex and marriage/civil partnership had to have the protected characteristic themselves. Under the equality act 2010 claims for associative discrimination of these protective characteristics and the others is possible and is exactly what occurred in a recent case.
Truman v Bibby Distribution Ltd ET/2404176/2014
In Truman v Bibby Distribution Ltd 2014 an employer learnt the hard way when the tribunal held that associative disability discrimination was committed against an employee when they dismissed him without a performance improvement plan despite his consistent satisfactory performance. The tribunal was told that the dismissal occurred on the day the employee accrued one year’s service, and directly followed indications that the employee would be increasing the time spent with his disabled daughter due to her increased caring needs as a result of her cystic fibrosis. The claimant was told that the reason he was dismissed was because “his heart wasn’t in the business” and his primary customer was dissatisfied with him.
The tribunal held that the claimant had been the victim of associative disability discrimination, following from the fact the timing was suspicious (on the date he was dismissed the employee became entitled to unpaid ordinary parental leave as one year’s service is the requirement), and the employer could not satisfactorily explain the employee’s dismissal as neither management or the claimant’s primary customer were dissatisfied with his performance.
This judgement suggests that sudden dismissal of anyone with caring responsibilities will raise suspicions of associative disability discrimination.
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