Can an employee bring a claim of discrimination based on someone else’s protected characteristic?

We often write about discrimination laws and the different forms that discrimination can take including direct discrimination, indirect discrimination, victimisation and harassment.    A less familiar concept is that of discrimination by association.   Here we address some of the key points about this growing area of discrimination law.

What is discrimination by association?

Discrimination by association arises where an employee or worker is treated less favourably because of the protected characteristic of another person.   The protected characteristics referred to in this context are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. 

Note that you cannot have discrimination by association because of someone else’s marriage or civil partnership.  

What type of discrimination claim can be brought based on someone else’s protected characteristic?

There is no “stand alone” law prohibiting discrimination by association under the Equality Law 2010.   

Instead, a claim of discrimination by association would typically be brought as a claim of direct discrimination under section 13 of the Equality Act 2010 which makes it unlawful for someone to be less favourably treated because of a protected characteristic.   The reference to “a” protected characteristic” instead of “their” protected characteristic purposely allows claims for direct discrimination to be brought by those who have been treated less favourably because of the protected characteristic of someone they associate with.

Following the change in the law earlier this year, however, it is likely that we will see more cases being brought of indirect discrimination by association (more on which below).

What is an example of direct discrimination by association?

A typical example of direct discrimination of association would be where an employee, who is the primary carer for a disabled child, is dismissed because their employer resents the fact that they have to take time off when their child is sick or needs to attend medical appointments. 

The following are examples of actual cases where discrimination by association has been claimed:

• In the case of Showboat Entertainment Centre Ltd v Owens [1984] ICR 65) an employee was successful in claiming direct race discrimination when they were dismissed for refusing to carry out their employer’s instruction not to allow black customers onto the premises.

• In McCorry v McKeith [2017] IRLR 253 the Tribunal held that the real reason for an employee’s dismissal was not redundancy but because of her employer’s view that she should be staying at home caring for her disabled daughter, rather than being at work.

• In the case of Graham v Gravity Supply Chain Solutions Ltd and another ET/2600849/22, Mr Graham’s wife was diagnosed with stage 4 cancer and subsequently he was made to work long hours and then demoted after he took sick leave due to work-related stress.  The Tribunal ruled that his wife’s disability was a material and significant reason for Mr Graham’s less favourable treatment and therefore he had been directly discriminated against because of his association with his wife. 

Can you claim indirect discrimination by association? 

The answer is yes, although this is an area of law that is at its early stages of development and there are very few cases on it, at present.

Indirect discrimination is where an employer applies an apparently neutral provision, criterion or practice (PCP) which puts workers/employees with a shared protected characteristic at a substantial disadvantage and that PCP cannot be objectively justified.   A common example given of indirect (sex) discrimination would be where an employer requires all employees to work full time.   The requirement to work full time indirectly discriminates against women (as it is accepted that more women than men have primary childcaring responsibilities) and is unlikely to be justifiable.

In January 2024, the Equality Act 2024 was amended to add a new section 19A which allows a worker to bring a claim of indirect discrimination even if they do not have the protected characteristic which the disadvantaged group has.  It is enough that the worker suffers the same disadvantage as the group that shares the protected characteristic.  To use the example above of indirect sex discrimination, this means that a male employee can potentially claim indirect sex discrimination by association if they are unable to meet a requirement to work full-time because of child caring responsibilities.    The defence of justification is, of course, still available to an employer in these circumstances, but this new law widens the scope of discrimination laws considerably.  

The impact of this recent change in the law has yet to be seen but it is inevitable that there will be an increase in claims brought under the Equality Act 2010.   As a business, it is important to be mindful of the change in the law, particularly when dealing with requests from employees for flexible working, investigating grievances and addressing performance, attendance or conduct issues.