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Indirect associative discrimination

March 15, 2024

If you read our recent blog (and if you didn’t, you should now!!), you will have spotted my colleague Blair’s almost throwaway mention of a change to discrimination law introduced on 1st January this year.

The Equality Act 2010 (Amendment) Regulations 2023 brought into force a number of changes, but the one which could be said to be most significant and (perhaps) controversial is that of a new section 19A which is now found in the Equality Act 2010. This section expands on which individuals can be protected by and bring claims where they assert they have been indirectly discriminated against.

There have been previous occasions where the categories of person who can claim rights under discrimination legislation has been extended:

1. In 2008, the European Court of Justice recognised the principle of discrimination by association for the first time in the case of Coleman v Attridge Law and another ([2008] ICR 1128). This allowed the claimant in that matter to succeed with claims of direct discrimination and harassment on the basis that she had been subjected to unfavourable treatment because of her son’s disability, rather than her own protected characteristic.

2. In the same year, in English v Thomas Sanderson Blinds Ltd (UKEAT/0556/07), the Employment Appeal Tribunal recognised the principle of discrimination by perception, allowing the Claimant to again succeed with a claim of harassment when they themselves did not actually have the protected characteristic. In this case the claimant brought a claim of sexual orientation harassment due to homophobic comments made by his work colleagues, despite the fact Mr English was not gay; his colleagues being aware Mr English was not gay; and Mr English accepting his colleagues knew he was not gay. So, his claim succeeded despite nobody having the protected characteristic.

Claims of discrimination by association and perception could only be brought where a claimant alleged either direct discrimination or harassment.

Section 19A now adds to this extension of protection. The text for the new section 19A can be found here. The significant change it makes to the law is that it allows a claimant to bring a claim of indirect discrimination even where they themselves do not have the protected characteristic which experiences the required group disadvantage. An individual can bring a claim for indirect discrimination so long as they can show that their circumstances are such that they are personally disadvantaged for a reason that would amount to a group disadvantage to others because of their protected characteristic (i.e. they can associate with the disadvantaged group because they are in the same position, even though they do not have that protected characteristic).

What does this mean in practice? If we take an example of perhaps the most commonly referred to indirect sex discrimination claim, we can see how this new provision will create significantly greater obligations for employers.

• It is still accepted that more females than males have childcare responsibilities.

This means that, as a result of that obligation, imposing a requirement that all employees work full time (the necessary “provision, criterion or practice (PCP)” for a standard indirect discrimination claim) will result in a disadvantage to females who will find it more difficult to comply with that practice.

• In a standard claim of indirect discrimination, a female will be able to point to:

The application of a PCP by the employer (the need to work full time);

The group of which they form part as a result of their protected characteristic (i.e. females) being put at a disadvantage by that PCP (i.e. childcare responsibilities make full time working more difficult/ impossible);

Where their individual situation is such that they cannot work full time hours due to childcare reasons, they have personally been subjected to the particular disadvantage.

• In terms of section 19A(1)e), any individual (i.e. a male) who is unable to work full time hours because they have childcare responsibilities would now be able to pursue a claim of indirect discrimination even though they do not have the relevant protected characteristic, simply because the PCP is discriminatory to another particular group.

It is certainly an awkward concept. However, in summary, it leaves employers in a situation where the application of a PCP would be discriminatory to any particular group on the basis of a protected characteristic could not give rise to a claim of indirect discrimination by any individual who would personally be subject to the particular disadvantage suffered by that group.

Of course, the above is just one example. The new rules can apply to any situation where indirect discrimination could be made out on the basis of any protected and other potentially more common situations that may arise could include:

• Where a recruitment process or exercise is discriminatory to a group of people who suffer from a particular disability, even where the individual bringing the claim struggles with that process for reasons not caused by disability.

• Where a certain benefit requires an employee to have a minimum period of service making it more difficult for younger employees with less service, any employee with less continuity of employment than the required threshold could bring a claim of indirect age discrimination no matter their age.

• Where an employer has a requirement that any employee is able to communicate easily in English, this will generally put those who are from a country whose main language is something else at a disadvantage. Under the new rules, those whose communication is not as clear as it could be due to a regional dialect would be able to argue they have been indirectly discriminated against due suffering from the same disadvantage as the group of non-English speakers from another country.

The new rules open up the gates to a greater number of potential claimants under the Equality Act, as we have now further moved away from the individual bringing a claim requiring to have the protected characteristic upon which they rely, or to be associated with such a person or there being a perception they may have that protected characteristic.

This will require employers to be ever more aware (particularly when dealing with grievances) of not just the individual’s particular circumstances but whether they, if experienced by someone with a particular protected characteristic, would create the risk of a claim.

As with standard indirect discrimination claims, any discriminatory treatment can be objectively justified on the basis the PCP is a proportionate means of achieving a legitimate aim. Evidence would be required to establish this.

In terms of what employers can do to minimise the risk of claims being brought, 3 things to consider are:

1. Carefully consider and listen to employee complaints and grievances. Being dismissive of an employee on the basis it doesn’t seem like there is any risk based on their circumstances will now carry a greater risk of claims being brought.

2. When introducing any new policy or general rule (the PCP), try and risk assess this in advance to consider whether it may impact on any particular group of individuals because of a protected characteristic. While this was always a sensible step to take, given the potential for a greater number of employees to complain about a potentially discriminatory policy, it becomes more important to do this. Of course, risk assessing existing policies in the same way cannot hurt either.

3. Train your managers to make them aware of both how indirect discrimination works in general and on how the new rules introduced under section 19A expand on the protection indirect discrimination can provide. Managers knowledge can be key in dealing with employee’s issues at an early stage.

To date, no claims brought under section 19A have been reported, so it may take some time for the real impact of this change to be understood. However, being proactive in trying to ensure any PCP given effect to is fair, transparent and can be justified should go some way to ensuring that the risk of employers being more regularly “associated” with legal claims or employees “perceiving” they have been discriminated against is greatly reduced.

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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