An intro to Associative Discrimination

8/12/2019 An intro to Associative Discrimination

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INTRODUCTION

A focal point of contemporary jurisprudence is employment law because of its perpetually

dynamic principles, which comes as a result of constant individual circumstances.

Discrimination is an important and difficult facet of employment law because of the

variations of it that can sometimes be difficult to prove. Discrimination, usually described as

a deliberate negative behaviour towards people with certain characteristics, can be

experienced in a variety of ways, but is categorised into two main groups, direct and indirect.

Direct discrimination occurs when someone is treated less favourably -not just differently-

than another person because they have or are thought to have a protected

characteristic.1Associative discrimination, introduced to offer recourse to third party

individuals affected by the direct discrimination of people who have a protected

characteristic, is a sub-category of direct discrimination.Case law has also shown that it is not

necessary to have an actual association between the claimant and a person with a protected

characteristic; it is sufficient for the protected characteristic to be the reason for the treatment.

The courts have developed this principle since it was first recognised in race discrimination

cases, to cover many other areas of unlawful discrimination, and while it can still be

considered to be a novelty concept, it has been accepted to be imperative to the courts

inclination to fairness.

DEVELOPMENT OF ASSOCIATIVE DISCRIMINATION

A person discriminates against another ifon racial grounds he treats that other less

favourably than he treats or would treat other persons.2 On racial grounds is the most

1

Alex Davies (ed). Workplace Law Handbook 2011 - Employment Law and Human Resources Handbookpg.204. Also see s.1 RRA 1976, replaced by s 13 Equality Act 20102Race Relations Act 1976, s1


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significant part of this definition because the EAT has read it to allow race discrimination by

association with someone of a protected characteristic.

Associative discrimination was discussed in previous cases, but not until Showboat

Entertainment Centre Ltd. v. Owen3was it officially adjudicated. In this case, the employee,

a white manager of an amusement arcade, was dismissed because he refused to execute a

racially discriminatory instruction from his employers, which involved the exclusion of

young blacks from the premises. Section 30 of the Race Relations Act 1976 (RRA)

provides that it is unlawful for a person who has authority over another person to instruct

him to do any act which is unlawful by virtue of Part II or III of the Act (Part II deals with

discrimination in the employment field and Part III with other unlawful acts).Unfortunately,

though, that section does not give an individual a right of complaint to a tribunal, only the

Commission for Equality and Human Rights.4 Due to this, the courts decided that it was

unfair to people who were discriminated against and decided to find a way to give justice

within the confines of legislation. In Showboat, the Industrial Tribunal decided that it was

possible for Mr. Owen to be directly discriminated by association, emphasising that the term

'on racial grounds' under s3(1)of the RRA is to be given a wide interpretation consistent with

the intention of Parliament to prohibit all forms of racial discrimination. Although higher

courts have told the Tribunal to avoid reading outside of the literal meaning of legislations,

ignoring that in this case seemed apropos as it sought the purposive intent by following a

statement in Lord Dennings judgement in Nothman v Barnet London Borough

Council,5which states that Whenever the strict interpretation of a statute gives rise to an

absurd and unjust situation, the judges can and should use their good sense to remedy itby

3

[1984] 1 W.L.R. 3844s.30(2)(a), RRA 1976

5[1978] 1 W.L.R. 220.Para. 228


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reading words in, if necessaryso as to do what Parliament would have done, had they had

the situation in mind.

The employer subsequently appealed to the Employment Appeal Tribunal (EAT) claiming

that the Act should be read verbatim and applied literally, in that a person is unlawfully

directly discriminated against on racial grounds under s 1(1)(a)b of the RRA only when the

discrimination relates to the race of the complainant, and therefore it should not be possible

for Mr. Owen to make a claim of unfair treatment suffered by him because of another

persons race. However, the EAT upheld the decision and Browne-Wilkinson J giving the

judgment stated: Certainly the main thrust of the legislation is to give protection to those

discriminated against on the grounds of their own racial characteristics. But the words on

racial grounds are perfectly capable in their ordinary sense of covering any reason for an

action based on race, whether it be the race of the person affected by the action or of othe rs.6

The first suggestion of a principle like associative discrimination came from Lord Dennings

judgement in Applin v Race Relations Board.7The foster parents in this case were being

incited, but refused to succumb to the pressure, to accept only white children into their

home by the racist, National Front (NF) party. This subsequently caused the Race Relations

Boardto bring a claim on the grounds that it was illegal to pressure a person to discriminate

against another by virtue of sections 2 and 12 of the Race Relations Act 1968. Lord Denning

M.R. stated that by insisting on white children, Mr. and Mrs. Watson would be

discriminating against the local authorities themselves.8He also quoted an example whereby

if two white women frequently went to a public house with coloured men and one day the

innkeeper told them that they were not allowed if they were accompanied by the men,

6

Showboat p. 70B7[1973] Q.B. 815

8Ibid. p. 828


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hewould be discriminating against the two women. Lord Denning agreed by saying, The

definition of discrimination [section 1(1) of the RRA 1968] is wide enough to cover the case

of the two women,because they would have been treated less favourably than other women

based on the colour of the people with whom they associated themselves. Similarly, in this

case, Mr. and Mrs. Watson would discriminate against the local authorities on the ground of

colour if they decided to take white children only.Although it was not possible for this case to

set aprecedent because of the enactment of new legislation with different wording, it

evidently influenced subsequent judgements.

Even before Showboat, Applin was first followed by Wilson v T B Steelwork Co Ltd9, where

a white woman was refused a job because her husband was black, and later in Zarczynska v

Levy10where Kilner-Brown J opined, We are of [the] opinion here that if Parliament had

had pre-knowledge of this unfortunate complainant's predicament they would have made

clear that the great civilised principle upon which the Act was based was one which overrode

all apparent limitations expressed in other sections which had the effect of denying justice to

someone who was victimised.This dictum again suggested that the courts had no problem

reading the RRA to meet the true purpose of the Act.

Associative discrimination re-emerged in the 1999 Law Reports when the Court of Appeal

(CoA) adjudicated Weathersfield Ltd v. Sargent.11Mrs. Sargent, an employee at a vehicle

rental company, resigned after she was instructed by a senior employee to tell ethnic

minorities that there were no vehicles available when they called to enquire.The

representation for the employers unsuccessfully argued the same point as Showboat, stating

that the precedent should be overturned because of an error of law.Pill LJ stated that

9

Industrial Tribunal (Case Number 23662/7710[1979] 1 W.L.R. 125

11[1999] I.C.R. 425


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Showboatshould not be overruled and the phrase on racial groundsshould be given a broad

meaning because it was justified and appropriate.12

In Redfearn v Serco13the EATs reversal of an unfair dismissal claimwas clearly fact-based,

but there was a perverse logic that caused the CoA to overturn the decision. Mr. Redfearn

was a bus driver who worked with and transported a largely Asian community and when he

decided to become a candidate for the British National Party -whose views are known to be

primarily racist- concerns were raised and he was subsequently dismissed. He claimed that he

was dismissed on the grounds of the ethnic origin of the members of the public as well as his

colleagues, but the employers claimed that they dismissed him on grounds of health and

safety, fearing violence from fellow employees and Asian members of the public. The initial

hearing saw the Tribunal reject the claim, but the EAT reversed it, basing its argument on the

fact that if Mr.Redfearn was dismissed for being a racist, then it was on racial grounds,

which would, theoretically, constitute an unfair dismissal based on the RRA 1976. The CoA

accepted that the reasoning in Showboatjustified a finding that Mr.Redfearnsdismissal was

based on health and safety rather than race, as well as that Showboatwas not confined to

cases of unlawful instruction to discriminate. Discrimination by association does not cover all

cases where race is a significant factor in the act of the alleged discriminator because in cases

such as Redfearn, a racist employee would have recourse for being racist, which is against the

purpose of the Act. The EATs decision seems to imply that if one person at work was

involved in acts of racial harassment against another person, and after being disciplined for

those acts, he/she would have the protection of the courts against their punishment. Deciding

in Mr.Redfearns favour would set a dangerous precedent for cases where someone

committing racially discriminatory acts would have race discrimination claims themselves if

12Ibid. p.16

13[2006] IRLR 623


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they were dismissed on those grounds. The CoA clearly felt that the purposes of the

legislation would not be fulfilled, i.e., to prevent racial discrimination, not to protect people

who share racist sentiments.

OTHER AREAS OF ASSOCIATIVE DISCRIMINATION

Despite having its roots in race discrimination, associative discrimination has been extended

tomany other areas of discrimination. The Equality Act 2010 now includes age, disability,

gender reassignment and sex as areas where it is possible for a party to experience associative

discrimination, but it still does not includethe characteristics of marriage, civil partnership,

pregnancy and maternity.

In Saini v All Saints Haque Centre,14regulation 5(1)(b) of the Employment Equality (Religion

or Belief) Regulations 2003, which implemented religious discrimination elements of the EC

Employment Equality Directive 2000/78 was read to fulfil the purposive intent of religious

third party discrimination.

The judgement in Coleman v Attridge Law15was important because the ECJ stated that

associative discriminationis outlawed by Directive 2000/78.As a result, it will be possible for

claims to be made on the grounds of a discrimination due to association with a disabled

person, for example an employee being discriminated against or harassed because they are

the parent of a disabled child.

However, the ET and EAT agreed that a man could not bring a claim for associative

discrimination on the grounds of pregnancy or maternity, as stated earlier, which was the case

in Kulikaoskas v McDuff Shellfish.16

14[2009] 1 C.M.L.R. 38

15

C-303/0616UKEATS/0063/09/BI


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CONCLUSION

As highlighted in this paper, associative discrimination, in its short existence, has covered a

wide scope and serves an important purpose in the courts inclination to fairness. The judges

have readily interpreted statute to fulfil the obvious intention of parliament and will continue

to do so in order to avoid a perversion of justice. It is an indubitable fact that case law and

possibly legislation will emerge to address the other forms of discrimination.


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An intro to Associative Discrimination

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