Indirect associative discrimination

Direct discrimination is where an individual is treated less favourably because of a protected characteristic. The individual need not possess that characteristic. This is called associative discrimination: an individual suffers less favourable treatment because of their association with an individual with a protected characteristic.

Indirect discrimination is where a provision, criterion, or practice applies equally to all but in fact disadvantages an individual who is part of a group of individuals who share a protected characteristic. The wording of the Equality Act 2010 specifically requires the individual to possess the relevant protected characteristic:

“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”

There is therefore no room for indirect associative discrimination: B must possess the relevant characteristic that he alleges the measure is indirectly discriminatory towards.

However, the EU directive that the Equality Act 2010 sought to implement (the UK then being a member of the European Union and thus obligated to implement EU law into UK law) includes indirect associative discrimination in its scope. Therefore, if an individual is able to show that they have been treated less favourably because of a PCP that applies equally to all, but negatively impacts them because of their association with an individual with a relevant protected characteristic, they will be able to claim.

An employment tribunal has just allowed such a claim to proceed; the first time in the UK court system.

The Claimant worked for Nationwide as a Senior Lending Manager. She worked mostly from home because she had to care for her disabled mother. Nationwide had a re-shuffle and decided that all management staff must work from the office to provide adequate supervision. There was simultaneously a redundancy situation. The Claimant was picked because of her refusal to work exclusively from the office.

She claimed unfair dismissal, direct disability discrimination, indirect disability discrimination, direct sex discrimination, and indirect sex discrimination. All claims failed apart from unfair dismissal and indirect disability discrimination.

Direct disability discrimination failed because the less favourable treatment was not because her mother was disabled. However, indirect discrimination succeeded because the Claimant was put at a particular disadvantage by Nationwide’s PCP of requiring all workers to return to the office, because her mother was disabled, meaning she wouldn’t be able to care for her.

The tribunal disregarded the absence of indirect associative discrimination in the Equality Act 2010, holding that UK law must be compliant with the EU law it seeks to implement (lower courts must still adhere, so far as is possible, with pre-Brexit EU court decisions. Only the Court of Appeal and Supreme Court can diverge).

This is a very important case. Formerly, indirect associative discrimination has not been protected by UK equality law. The Claimant had to actually possess the relevant protected characteristic they alleged the PCP disadvantaged. Although the case is not binding on other tribunals, as it is only a first-tier decision, it suggests tribunals may more readily find that where a PCP disadvantages an individual who has an association with an individual with a protected characteristic, there is indirect discrimination.