Associative discrimination

It is the duty of all employers to treat their staff equally and fairly, and not to discriminate against protected employee characteristics in any way. Employers must also be aware of the distinction between direct discrimination and associative discrimination, the range of both issues and the ramifications each can have on their business. Direct discrimination in the workplace refers to the unfavourable treatment of an individual or group based on a specific characteristic. There are nine characteristics protected by law:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

The difference between direct and associative

The protection of these characteristics does not necessarily mean that staff must directly possess the characteristic themselves. If the discrimination arises ‘because of’ a protected characteristic then the person may file a claim for associative discrimination, or ‘discrimination by association’. For example, a mother who has previously been promised a promotion at work tells her manager that her daughter has a disability. Having learnt this, the manager withdraws the promotion on the grounds that the mother would be unable to focus entirely on the new role due to a perceived duty of care for her daughter. This would be considered as associative discrimination because of the mother’s association with a disability.

Consequences for the business

If an employer discriminates against an employee – whether direct or associative – they run the risk of an employment tribunal claim. If the tribunal finds the claim to be valid, they may order the employer to compensate the employee on the grounds of discrimination. It’s important to note that compensation for discrimination is unlimited and any sanctions against the employer are for the tribunal to decide on a case-by-case basis.

The law behind associative discrimination

As with direct discrimination, The Equality Act 2010 protects employees from associative discrimination. Protection from associative discrimination is a ‘day-one’ employee right. This means that there is no required length of service required in order for an employee to file a tribunal claim against the employer.

Summary

• Employers must be aware of the distinction between direct and associative discrimination.
• Employees are immediately protected from associative discrimination, which means they are able to file a tribunal claim against their employer from the moment they join a company.
• If the claim for associative discrimination is considered valid then the employer is liable to pay an unlimited amount of compensation to the employee, to be decided by the tribunal.