Can victimisation by association be a valid claim?
Section 27 of the Equality Act 2010 states : victimisation occurs where an employer subjects a person to a detriment because that person has done a protected act (or because the employer believes that person has done a protected act).
The Equality Act 2010 also provides that where somebody is associated with somebody with that protected act, they are also protected.
However, does that protection extend to a claim for victimisation?
This was considered by the Employment Appeal Tribunal (EAT) in the case of Thompson v London Central Bus Company Limited (LCB Limited).
Mr Thompson was dismissed by his employer, LCB Limited, for having given his high visibility vest to another employee. Mr Thompson was reinstated on appeal. However, he alleged that the decision to dismiss him was an act of victimisation.
Although Mr Thompson did not claim to have done a protected act himself, he asserted that he was subjected to a detriment because of a protected act done by others.
The protected act was that he relayed to a manager a conversation he had overheard in which other employees accused the Company of having breached the Equality Act. Thereafter, the manager associated him with those employees and this was the reason for this treatment.
An Employment Judge considered this and held that it was uncertain whether the necessary causal connection was satisfied and struck out the claim. However, Mr Thompson appealed to the Employment Appeal Tribunal (EAT). The EAT held that the Tribunal was wrong to strike out the claim. The Tribunal, having accepted the individual may claim victimisation based on a protected act of a third party, was wrong to find that a particular form or degree of association would be necessary in order for that claim to succeed.
This is an important decision for employers as it extends the scope of the claims for victimisation by employees.
If you would like any further information or discussion regarding the potential claims employees could bring in the Employment Tribunal, please do not hesitate to contact Sejal Raja.
020 7227 7410
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.