Discrimination by Association

Definition- What is Discrimination by Association?

Discrimination by association is the form of discrimination that occurs when the discriminatory ground applies to a person, but another person is detrimentally treated in consequence. Sometimes, the phrase “transferred discrimination” has been preferred as a way of describing more accurately what has taken place within certain situations. We provide some illustrations of this alternative definition within our commentary below about how the law might be interpreted. The concept of associated discrimination has had a very low profile until recently, featuring in a small number of race relations cases around the practice of “instructions to discriminate”.  These race relation cases are briefly profiled below.  However, the most important case of late, effectively the catalyst for proposed legislative change, is that of Mrs Sharon Coleman v Attridge Solicitors. We have also provided a brief profile of this important case in the next section.

  Important Cases – These have shaped the present definition of associated discrimination and/or transferred discrimination

Race Relations – Instructions to Discriminate – Associated Discrimination

The first real authority in this area was the case of Showboat Entertainment Centre Ltd v Owen (1984) ICR6. A white manager of an amusement arcade was dismissed because he refused to carry out an instruction from his employers to exclude “young blacks” from the premises. A second white manager obeyed the instruction and was not dismissed. The courts ruled that discrimination had occurred within this comparison of different treatment meted out to the two managers on the employer’s attitude to race which the first white manager had found offensive. There had been other smaller race relations cases prior to 1984 were the phrase “associated discrimination” was not used but the circumstances are now seen as clearly analogous. Thus, in Wilson v T B Steelwork Co Ltd (Case Number 23662/77), a white woman was turned down for a job because her husband was not white.  The case of Zarczynska v Levy (1979) ICR 184, was based upon an instruction by a pub landlord, to the bar staff not to serve “coloured people” as customers.

Mrs Sharon Coleman v Attridge Solicitors- 2008

This recent case, building upon the foregoing examples from race relations complaints, takes us into the areas of (i) disability and (ii) those with caring responsibilities. But more critically, is now clearly the gateway that the United Kingdom government have decided to go through in applying the concept of associated discrimination to all diversity strands from both an employment and service delivery perspective.

Mrs Coleman gave birth to a child with a disability. Her child had a condition that led to very severe breathing difficulties. He required specialised and intensive care. She was his primary carer. She believed that her employer did not expect her to return to work after her maternity leave had expired. But she did so and about three years after the birth of her son, took voluntary redundancy. She subsequently alleged constructive discriminatory dismissal and harassment on grounds of disability. Her argument was that her son was disabled, and, because of her association with a disabled person and the manner in which she was treated, left her with no option but to take voluntary redundancy.

  This discriminatory treatment included:-

• Refusal by the employer to allow her to return to her existing job after maternity
• That her employer had called her “lazy” when she sought time off work to care for her son
• That the employer said she was using her “f..... child “ to manipulate her working conditions
• That employees with non disabled children were afforded the flexibility denied to her with their working pattern arrangements
• Failure by the employer to deal with her grievances about these matters

Her victory obviously has caused the Disability Discrimination Act to widen within its scope but also will have profound implications for the six million of people in the United Kingdom already having to reconcile work and caring responsibilities. And an estimated three million more home carers who will now consider entering the world of work given the implications of this victory for them.

But the Coleman case has become the catalyst for change. In our April 2009 update we profiled the following breaking news.

“The Leader of the House of Commons has just confirmed that the government will extend the prohibition against associative and perceptive discrimination to “all other diversity strands and areas” where it does not apply at the moment. This important announcement reflects the government’s considered response to the landmark case of Mrs Coleman, published in our July 2008 edition”

 How might the new legal concept work?

The Coleman case will generate demands for a number of changes in practices relating to the workplace. An office culture that is based on the hostility of work colleagues towards carers who have to come in later or go home early will certainly have to change. Carers who want to work from home are likely to find it easier to make legal arguments in support of such a request.  On a much wider level, courts and indeed human resources specialists are going to be addressing how “associated with” is defined. It is almost certain that the scope of the definition will include immediate family, but possibly partners, friends, associates and colleagues. The European framework on which the Coleman judgement is based does in fact provide a very wide definition of “associated with.”

Not for the first time, it is instructive to look over the Irish Sea to the Republic.  There are some clear transferable European definitions of associated discrimination within that country’s equality laws and subsequent court decisions. And a previously introduced UK equality law does appear to be drawing upon Irish practice, e.g. the Age Discrimination regulations.

The Age Discrimination regulations, introduced in the United Kingdom in 2006, were first introduced in the Republic of Ireland in 1998. A largely European based statute, the way in which United Kingdom courts have been applying the Age Discrimination laws do appear to have reflected Irish case law authorities. This is likely to be the case with associated discrimination.

Discrimination by association was first introduced into Irish discrimination law in that country’s Equal Status Act 2000. This act deals with the provision of goods, facilities and services and is likely to be the model adopted by the United Kingdom very shortly in applying associated discrimination to both employment and service delivery situations. An important Irish case provides us with some idea of the indicative way in which associated discrimination might be defined and applied within service delivery situations. In the case of Michelle Feighery v McMathunas Pub (DEC S2003-51), a woman who was not a member of the traveller community was asked to leave a pub when she protested that travellers, whom she knew, had been asked on an earlier occasion to leave the premises. She was successful in her complaint of discrimination arising from her association with members of the traveller community. In this case, the complainant did not attend the pub with members of the travelling community. She was thrown out of the pub because she got involved in a situation that did not directly concern her. The case powerfully illustrates that the relationship with the complainant does not have to be close for the complainant to meet the test of “associated” within the context of Irish law. And it is this Irish definition and application, itself based on European Law that United Kingdom law is almost certainly going to emulate.

It would therefore be sensible for any employer:-

• To plan on the basis that gender,race,religious belief,disability,age,sexual orientation are all characteristics that should not play any part in decision-making – and one has to take account not only of the employee but of anybody with whom the employee is associated
• To amend all dignity at work policies covering harassment and bullying ensuring they cover the concept of associated discrimination
• To ensure that customer care policies embrace the concept of associated discrimination. The early race relations cases profiled above and the Irish case show there is and will continue to be clear potential for complaints in this area

Some existing equality statutes do provide for a form of associated discrimination. The prohibitions on direct and indirect marital discrimination within the Sex Discrimination Act 1975 and latterly discrimination on the grounds of civil partnership status are the most obvious examples.

Experts have presented a number of hypothetical scenarios around which the new United Kingdom law will define and apply the concept of associated discrimination:-

• A discriminates against B because B’s spouse is black; because B’s children are girls; because B’s friend is a Muslim; because B provides services to the gay community or because B’s spouse is of a particular age

There is also the further possibility that an act of indirect discrimination will define and apply the concept of associated discrimination. Although much problematical to discern, the following hypothetical scenario is entirely possible:-

• A requires all staff (including B) to work full time. B is a carer for C who is disabled. There is clearly an instance of indirect discrimination against B- the requirement to work full time being one that it is more difficult for B (and others) to comply with, as a consequence of C’s disability.

There is a further school of thought that may well widen the scope and interpretation of the definition of associated discrimination. We mentioned in our opening paragraphs that the concept of “transferred discrimination”. There is the possibility that not all discrimination, as described above, will be associative in the normal recognised sense. The waiter whose employer gives instructions that he is to refuse to serve ethnic minority or female would-be customers has no association as such with these hypothetical people. It is the discrimination that is intended to be directed towards them (the would-be customer) has an additional discriminatory impact on another person – the waiter. In this context, the discrimination is “transferred” from one party to another, although the discrimination to the other party may well remain.

We are going to monitor closely the precise wording of the forthcoming Single Equality Act. Our newsletter and training courses will ensure that the most accurate and up to date information is presented.   One thing is certain – the idea of associated discrimination will become of major importance in the years ahead.

 QED Training provides a wide range of lively equality laws and diversity issues courses, impact assessment toolkits and allied training as well as the development of diversity specific or single equality schemes. We also offer assistance with overall policy development and equality audits linked to our wide range of other subjects. These include from a legal perspective a focus on employment law, data protection and health & safety laws. From a wider diversity perspective we deliver cultural awareness courses and link this subject to soft skills as well as welfare rights, employment rights and other civil liberty issues.  Do get in touch if we can be of help.

A to Z -One Stop Training Shop!

Visit our website for details of all our services including our:-

Showcase equality law and diversity issues training courses
and many others, plus
Free monthly newsletter by e mail
12 month after care service
Lots of free resources and advice

http://qedworks.com/