Associative discrimination

09 July 2019

Everyone is different, and many of your workforces will come from different backgrounds, racial origins, or sexual preferences. Employers have a duty to never treat your staff differently due to a connection they have, this is called associative discrimination.

Failure to stop direct or indirect discrimination due to associations can lead to a person making claim against you and a potential employment tribunal.

In this guide, we'll discuss what associative discrimination is and its different forms, what a protected characteristic is, and how you can avoid it happening in your workplace.

What is associative discrimination?

Associative discrimination (its legal term being discrimination by association) is when you treat someone differently from other employees because they're associated with someone with a protected characteristic.

You must never provide an employee with less favourable treatment because they're connected with someone you have a pre-judgment about.

Discriminating against someone because of someone else's protected characteristic is against employment law.

What are the protected characteristics?

There are nine protected characteristics in the UK which are in place to stop discrimination at any level.

They are:

It's important that both employers and employees are aware that associative discrimination doesn't cover civil partnership pregnancy and maternity.

Green skittles representing discrimination.

Are employees protected against associative discrimination?

All employees in the UK, no matter what level they operate in, are protected from discrimination and be treated unfairly due to their associations.

The Equality Act 2010 protects employees with a protected characteristic if associative discrimination could ever occur in your workplace.

What's the Equality Act 2010?

The Equality Act 2010 is in place to ensure everyone in the UK is protected from being a victim of discrimination. For example, sex discrimination.

The act prohibits discrimination and provides protection against being discriminated against due to your association.

In order to manage associative discrimination successfully in your workplace, you need to understand the different forms it can take.

Different types of associative discrimination

Associative discrimination can take many forms, such as harassment and victimisation.

Employers should never allow a member of staff to feel at a substantial disadvantage because of a connection having a protected characteristic.

Your behaviour towards a group of employees should never have a discriminatory element to it, as this is unlawful.

Below are examples that you should be aware of in your business:

Direct discrimination by association

Direct discrimination by association is when a member of staff receives poor treatment from their employer due to their association with someone with a protected characteristic (such as religious belief sex sexual orientation).

An example of direct discrimination by association is treating an employee differently due to them having an association with someone from a different racial heritage.

Indirect discrimination by association

Indirect associative discrimination often occurs when a policy is in place which can lead to discrimination.

For example, an employee on a homeworking contract due to their caregiving responsibilities for their disabled mother is being made redundant due to a change of policy regarding home working.

They're not being dismissed due to being a caregiver, but due to home working.

These actions are against employment law and should be avoided by your business at all costs.

Associative racial discrimination

Associative discrimination due to racism is treating someone unfairly purely because they socialise or are married to someone of a different racial heritage.

For example, a manager treats an employee badly following a chance meeting in town between the manager, employee and the employee's wife who is from a different racial heritage.

Under employment law, this is seen as direct racial associative discrimination by employers.

Associative disability discrimination

Associative direct discrimination due to disability is often caused by preconceptions of a disabled person and their care needs.

For example, refusing to offer a promotion to an employee because they have a disabled child. This employee isn't less qualified for the role purely because of her child's disability.

Employers must never put someone's promotion prospects at a disadvantage due to a preconception they may need more time off due to caring responsibilities. For example, a father or mother's disability.

It's important to note that discrimination by association doesn't extend to reasonable adjustments.

Sexual orientation discrimination by association

This form of discrimination can start following a harmless conversation between employer and employee after the weekend.

For example, the employee mentions they went to a gay pride event to support their friend and their manager starts to treat them differently from their other colleagues moving forwards.

The law protects against associative discrimination due to their sexual preference.

Direct discrimination by perception

This form of discrimination takes place when a person is treated unfairly due to a preconception that their connection has a protected characteristic - no matter if it's true or not.

LGBT flat representing discrimination.

How to address discrimination in your business

In order to create a diverse and inclusive workforce, you need to attack any incidents of discrimination head-on.

Ensure accountability and responsibility

If an incident or direct or indirect associative discrimination takes place in your business, make sure you hold the guilty party responsible - no matter how high up they are. Failure to do so can send negative effects though your company and put you at a disadvantage.

Make sure your employees feel safe speaking out

In order to get to the root cause of a problem, you must create a safe space in which any person feels comfortable speaking out without fear of retribution. Communication is key in solving any problem in the workplace.

How can you avoid associative discrimination in the workplace?

There are many reasonable steps you can take to clear your workplace of all forms of discrimination.

  • Make sure any decision-making committees are made up of an equal representation of different races, backgrounds, and ethnic groups.
  • During any mentoring or group work, pair up with people from different backgrounds. This will help employees mix with others who they wouldn't usually mix with and bounce new ideas off each other.
  • Ensure you regularly review your written policies and procedures around disciplinary and update them where necessary.
  • Educate your workers about discrimination, show examples, and explain how it can make a person feel.

A wooden hammer on a wooden mallet.

Can you be taken to an employment appeal tribunal over associative discrimination?

A worker could file a tribunal claim if they feel they've been discriminated against without proper grounds as protected by the Equality Act 2010.

This could be an employment tribunal which would look at evidence from the Equality Act 2010 and EU law before finding a solution.

Tribunals are still required to use legislation used by EU law. Be aware that a Court of Appeal or Supreme Court may decide to not use EU legislation.

However, claims of direct and indirect associative discrimination aren't easy for employees to prove.

Get expert advice from Peninsula on avoiding associative discrimination

Employers across the UK have a duty of care to protect their workers from all forms of discrimination.

It's against employment law to treat your staff differently due to the connections they have, for example, the preconception that caregivers of disabled people can't meet office working requirements.

The Equality Act 2010 protects all employees against associative discrimination.

Make sure you fully understand how discrimination can make your staff feel, and what you can do to avoid it doesn't happen in your workplace.

Peninsula offers you expert 24/7 HR advice and support, helping you create an inclusive and diverse workforce. Contact us on 0800 028 2420

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