UK: Discrimination Based On Perception And Association

UK law currently prohibits an employer from discriminating in the employment field on the grounds of sex, marital and civil partnership status, gender reassignment, race, disability, religion or belief, sexual orientation or age (each known as a "strand").

The recent decision of the Advocate General in the European Court of Justice ("ECJ") case of Coleman v Attridge Law (2008) has highlighted the inconsistencies which exist between the different strands of discrimination law and between the different member states in their implementation of the Equal Treatment Framework Directive ("the Directive") and the Racial Equality Directive, which provide a framework for equal treatment in employment, covering race, disability, age, sexual orientation and religion or belief by the EU member states.

This article looks at what the current status of the law is under each strand, in the context of an employer's less favourable treatment of an employee, in relation to:

• the employer's perception of an employee having a particular characteristic; and
  
  

• whether an employee can claim discrimination by association.
  
  

When can an employee claim discrimination by perception or association?

If an employer treats an employee less favourably on the basis of the employer's perception that an employee has a particular characteristic, or on the basis of a characteristic of a third party, will this amount to direct discrimination?

Under each strand of discrimination law, a person (A) directly discriminates against another person (B) if he treats B less favourably than he treats or would treat a comparator, on the basis of a characteristic of B.

It would also be direct discrimination on the grounds of race, sexual orientation, religion or belief (as the case may be), if A treats B less favourably because of A's perception that B has the relevant characteristic or because of B's association with a third party who has the relevant characteristic. It would amount to direct age discrimination to treat B less favourably because of A's perception of B's age, but not to treat him less favourably because of B's association with a third party of a particular age.

However, in relation to sex and gender reassignment, there is no prohibition of discrimination based on either perception or association.

The current law, as to whether less favourable treatment of B by A amounts to direct discrimination by A, is summarised in the table below.

When can an employee claim discrimination by association?

Most of the cases in this area involve race discrimination. The leading case, before the recent Advocate General's opinion in Coleman v Attridge Law (see below), was Showboat Entertainment Centre Ltd v Owen (1984). In that case, a white manager succeeded in his race discrimination claim against his employer after he was dismissed for refusing to obey his employer's instruction to exclude black people from the premises. The EAT held that the ("RRA") prohibited the employer from treating an employee less favourably on the grounds not only of the employee's race but also on the grounds of his attitude to race.

However, the problems with this reasoning were highlighted in the subsequent case of Redfearn v Serco (2006), where a white bus driver who worked in a predominantly Asian area was dismissed when it came to light that he was a member of the BNP. He brought a race discrimination claim, alleging that he was dismissed on the grounds of his attitude to race (the race of his customers). The Court of Appeal rejected this argument. It held that the Showboat case confirmed that employees should be protected from being treated less favourably because they refuse to obey their employer's discriminatory policies, but that the purpose of the RRA would be undermined if it also protected employees who were themselves acting in a racially discriminatory way.

As the law currently stands, in view of the fact that there is no prohibition on less favourable treatment of a person on the grounds of his association with someone of the opposite sex, this means that, for example, a barman who is dismissed for refusing to obey instructions not to serve a woman or a married person cannot claim sex discrimination, whereas if he were dismissed for refusing to serve a black person he could bring a claim for race discrimination.

It seems, therefore, that an employee can claim direct discrimination if he is treated less favourably by his employer on the grounds that he:

• refuses to obey an instruction from his employer which is discriminatory on the grounds of race, religion, belief, or sexual orientation but not on the grounds of sex, age or gender reassignment;
  
  

• associates with someone of a particular race, religion, belief, or sexual orientation but not with someone of a particular sex, age or gender reassignment; or
  
  

• has a particular attitude to race, religion, belief, or sexual orientation - but not to sex, age or gender reassignment, provided that his attitude is not discriminatory.
  
  

Changes on the horizon?

Earlier this year, the Advocate General delivered an opinion in the case of Coleman v Attridge Law that EC law prohibits disability discrimination by association - in this case in relation to less favourable treatment of a non-disabled employee on the grounds of her disabled child.

Briefly, the facts of this case were that Ms Coleman resigned from Attridge Law after she was told that she was lazy and manipulative for taking time off work to care for her disabled son. She brought a disability discrimination claim under the Disability Discrimination Act 1995 ("DDA"), which was intended to implement the Directive into UK law. The Tribunal noted that the Directive's purpose was "to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation...", and asked the ECJ whether this was wide enough to prohibit less favourable treatment on the grounds of an employee's association with someone with those characteristics, or whether the DDA had correctly implemented the Directive by only prohibiting less favourable treatment on the grounds that the employee himself had those characteristics.

The Advocate General favoured a wider interpretation of the Directive, i.e. that it prohibits less favourable treatment of an employee on the basis of the employee's association with someone on the grounds of that person's religion, belief, disability, age or sexual orientation.

If the ECJ follows this opinion, it seems likely that:

• the DDA will need to be amended to outlaw discrimination by association;
  
  

• the meaning of the term "associated" will need to be clarified; it is not a statutory term, but case law does not provide any guidance as to whether the employee must have a particular attachment to, or provide a particular level of care to, someone with the relevant characteristic in order to be considered "associated" with that person for the purpose of bringing a discrimination claim;
  
  

• in view of the wide interpretation given to the phrase "on the grounds of...", the Directive would probably also be held to outlaw discrimination on the basis of an employer's perception of an employee's disability. As a consequence, the DDA may be amended to deal with this;
  
  

• this decision will not require a change in the law in relation to sex and gender reassignment (where there is currently no prohibition of discrimination based on perception or association) because these strands of discrimination law do not come within the Directive.
  
  

In June 2007, the Government published a Green Paper setting out its proposals for a Single Equality Bill ("the Bill") to consolidate, harmonise and simplify all discrimination and equality laws. Apart from gender reassignment discrimination, in relation to which the Bill proposes that there should be protection from discrimination by association with a transgender person, the Bill largely recommends maintaining the existing law in this area.

Conclusion

It is anticipated that the ECJ will follow the Advocate General's decision in Coleman v Attridge Law, not least because a number of member states already prohibit discrimination by association on the grounds of disability. If so, the repercussions for employers are potentially considerable given that there are thought to be in excess of two million carers of disabled people who would be afforded such protection.

In addition, a likely consequence of such a decision by the ECJ is that there will be a call to bring other strands of discrimination law, including for example gender reassignment, marital status and age discrimination, in line with disability discrimination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.