In the case of Thompson v London Central Bus Company Ltd
, the question of associative discrimination in relation to victimisation was considered.
Mr Thompson was a bus driver and he was disciplined for giving another employee his high-vis vest. He was already subject to a final written warning and was dismissed as a result of this disciplinary offence. He appealed the decision to dismiss and was successful. He ended up changing his stance by apologising and admitting he was in the wrong, which led to his employer instead revising its decision to 21 days unpaid suspension and a final written warning. He consequently dropped the unfair dismissal and notice pay claims, but pursued his claim for victimisation relating to the disciplinary action taken against him. This was on the basis that a protected act had been done by someone with whom Mr Thompson was associated (in the mind of management) and he alleged the disciplinary action against him was as a result.
Protected acts are, for example, acts such as making a discrimination claim, complaining about harassment or giving witness evidence regarding an employee’s discrimination complaint.
In this case, Mr Thompson had overheard a conversation involving colleagues (the conversation being the protected act), where it had been stated that certain employees had previously been deliberately targeted for opposing alleged wrongdoing by former management. He belonged to the same Trade Union as the employee who had carried out the protected act.
The employment judge at a preliminary hearing considered the causal connection between the protected acts and the detriment complained of. At this hearing, the claim was struck out as the employment judge was satisfied that the link between the Claimant (Mr Thompson) and the other employees (who did the protected act) was so tenuous that the Claimant was not afforded the protection. The employment judge concluded that the claim had no reasonable prospect of success.
The Employment Appeal Tribunal concluded instead that the employment tribunal was wrong to strike out the claim holding that the employment judge was wrong in seeking a particular form or degree of association for the purpose of associative victimisation. Instead, the EAT confirmed that ‘what matters is whether the treatment of the Claimant was by reason of his association with another who made protected acts’. This would be a question of fact for an employment tribunal.
Following this case there is further evidence that ‘associative discrimination’ may not be limited to direct discrimination and harassment and employers will now need to be wary that the same principle applies in cases of victimisation (where an employee is victimised, the employee can claim even when the protected act is carried out by another person, provided that they are victimised because of that act and there is no requirement for there to be a special relationship in existence between the person who is victimised and the person who carries out the protected act).