The Employment Appeal Tribunal has recently sanctioned the Employment Tribunal’s re-writing of Equality Act 2010, where it deals with victimisation. We explain how.
Victimisation, under the Equality Act 2010, occurs, in the main, where person A subjects person B to a detriment because person B has made an allegation of, or brought a claim for, breaches of employment law.
The legislation therefore clearly requires any claimant to have done the protected act themselves. However, in this case, the claimant, Mr Thompson, wanted to rely on the protected act of a third party. He claimed that he had been unlawfully victimised because he had overheard a conversation which indicated that other people could be victimised. He claimed that he was “associated” with the protected act, even though he had not done it himself.
The Employment Tribunal was mindful of its obligations under the Race Directive which provides: “Member states shall introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequences in reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment”.
As the Directive does not go so far as to require the claimant to have done the protective act, the Tribunal therefore concluded that the UK Equality Act 2010 should be re-written to protect claimants against associative victimisation. They held that the relevant provision of the Equality Act 2010 should now read: “Victimisation occurs where a person (A) subjects another person (B) to a detriment because of a protected act”. This meant that Mr Thompson could bring his claim. The point was not appealed and the Employment Appeal Tribunal did not disagree.
This case is in line with others we have reported dealing with associative disability discrimination (EBR Attridge LLP v. Coleman), and associative indirect discrimination (CHEZ Razpredelenie Bulgaria).
Employers would be well advised always to consider associative discrimination from now on, even where this has been expressly excluded from the legislation, and may not yet have been decided in case law.