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Has the scope for discrimination under the Equality Act 2010 (EqA) widened further to include victimisation by association? The recent case of Thompson v London Central Bus Company Ltd suggests that it has.
Under the EqA, victimisation occurs where an employer subjects an employee to detriment because the employee has done, or the employer believes the employee has done (or may do), a 'protected act'.
Mr Thompson was a bus driver for the London Central Bus Company Ltd (LCBC). After giving his high visibility vest to another employee, he was dismissed. Mr Thompson issued various claims, including a claim for victimisation.
Mr Thompson claimed that he was subjected to a detriment because of the 'protected act' of other members of his trade union, which he was associated with in the mind of his employer, and that this amounted to victimisation. Mr Thompson himself had not done a protected act.
Two preliminary hearings
In the first preliminary hearing, the Employment Tribunal (ET) assessed whether a claim for victimisation by association could be brought under the EqA. The ET concluded that the EqA should be interpreted as including victimisation where there is detriment to another 'because of a protected act', rather than the claimant's own protected act. This decision was not appealed by LCBC.
The second preliminary hearing was to decide the causal connection between the detriment and the protected act. It was held that the link between Mr Thompson and the individuals who performed the protected act was too tenuous, and therefore the claim for victimisation was struck out. Mr Thompson appealed against this decision to the Employment Appeal Tribunal (EAT).
The EAT allowed Mr Thompson's appeal against strike out. The ET should have considered whether there was a link between the claimant and third party 'in the mind of the employer' rather than assessing how strong the link was in practice. The ET therefore struck out the claim on an incorrect legal basis and the case was remitted for rehearing.
This case reminds employers about the need to carefully document the reasons for making a decision in order to defend any allegations that the decision is motivated by improper purposes.
However, this case has much wider implications because the ET appeared to widen the scope for victimisation by accepting that victimisation by association is possible. This departs from the wording of the EqA which requires detriment in response to the employee's own protected act.
Whilst this decision was made only at ET level, and therefore is not binding, it indicates that victimisation by association may be possible. This decision follows the ECJ's decision in CHEZ Razpredelenie Bulgaria, which allowed discrimination by association in relation to indirect discrimination.
It will be interesting to see whether this further widening of the EqA is confirmed by other courts and tribunals in due course. In the meantime, employers should ensure that managers and decision-makers are alerted to the potential increased risk of claims of discrimination by association.