Blog: “Discrimination” – the ever expanding word!

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Once of the reasons why I love being an employment lawyer is that there is never a dull moment (no, really) because the law is constantly changing and evolving.

Discrimination law as a prime example. It just can’t sit still, and is ever expanding in its scope. It used to be thought that in order for the discrimination rules to protect an employee they themselves had to have one of the ‘protected characteristics’ that are set out in what is nowadays the Equality Act 2010 (e.g. to claim disability discrimination, you needed to be disabled).

However, the case of Coleman v Attridge Law changed all that. In that case, the ECJ ruled that it is not necessary for an employee to be disabled themselves in order to bring a direct disability discrimination claim – they could merely be ‘associated’ with a disabled person. This led to the wording in the Equality Act 2010 being clear that this is now the case for direct discrimination.

The logic of the Coleman case continues to have significant repercussions and as we will see from these three recent cases below we will all need to think a lot more carefully about the question of whether someone is covered by the Equality Act 2010.

Can a company sue for discrimination?

We have just become aware of a case that says that a limited company can claim discrimination. Yes, that’s right, a company. The facts were that a member of a limited liability partnership (LLP), as he approached retirement, set up a limited company (as a personal service company) of which he was the sole director, and this service company took his place as a member of the LLP and took his profit share.

A dispute about his retirement then occurred and he wanted to bring an age discrimination claim through his limited company, since it was his limited company who primarily suffered the financial loss, but of course it was he who had the ‘age’ and really suffered the discrimination. As he was no longer directly connected with the LLP in his own right, he was unable to sue in his own right.

After some argument, the Employment Tribunal allowed his limited company’s discrimination claim against the LLP to proceed. The LLP appealed to the EAT, claiming that since only individuals can have the protected characteristics listed in the Equality Act, only individuals are protected from discrimination.

The EAT didn’t agree. The EAT judge pointed out that the Equality Act does not deal with individuals on the basis of their protected characteristics but identifies discrimination as treatment caused by a protected characteristic or related to it. This wide wording means that any person (which can be an actual person or a legal “person”, i.e. a company) may suffer detrimental treatment and if the treatment is suffered because of an individual’s protected characteristic then it is potentially covered by the Equality Act.

Who can sue for indirect discrimination?

The next example is another case from the CJEU (formerly the ECJ) which we have mentioned previously in our News updates.

The case concerned an electricity supplier which placed electricity meters at an inaccessible height (six metres) in a particular district of a Bulgarian town (the normal height being 1.7 metres). The company’s ostensible purpose was to prevent crime, on account of high levels of meter tampering and unlawful connections to the network in the area. The district in question was populated mainly by people of Roma ethnic origin. A resident who was affected by this, but was not Roma, brought a case of indirect discrimination, and succeeded. It is obviously difficult to read your meter when it is 6 meters off the ground and although the claimant wasn’t Roma herself, she felt that she and all the local inhabitants had suffered adverse treatment as a result of the electricity company being prejudiced against Roma people.

The CJEU said that the wording of the EU Equal Treatment Directive allowed this wide interpretation. It found nothing in the wording which stated that a victim of indirect discrimination must share the race or ethnic origin of the protected group which is being discriminated against.

That decision is a significant change and is going to require the UK to amend the Equality Act, since currently an indirect discrimination claim requires the claimant to have the protected characteristic that is being complained about. In other words, it extends the wider scope that already exists for direct discrimination (following Coleman) into the world of indirect discrimination. Perhaps it’s easier if they are to be treated in the same manner.

Expansion of victimisation too

The final case in this round-up is a decision of the EAT and relates to a victimisation claim by Mr Thompson, who was a bus driver for London Central Bus Company Ltd (LCBCL).

He was dismissed following an incident in which he gave his high-visibility vest to another employee. He issued claims for (amongst other things) victimisation under the Equality Act. Some of his claims did not proceed, but the victimisation one did. The twist is that the victimisation claim was not based on a protected act done by Mr Thompson himself. Rather, it was based on a protected act done by a colleague of his, who Mr Thompson claimed was seen by management as being associated with him since they both belonged to the same trade union.

The EAT agreed with Mr Thompson. So now person A can bring an ‘associated’ victimisation claim on the basis that he suffered as a result of person B carrying out a protected act.

Another really significant change to discrimination law.

Consequences

We should have a think about the consequences of this line of cases. Here’s an example:

Your company has a full-time working requirement. A male employee requests to work part-time in order that he can do child care. His application is rejected. He decides to bring an indirect discrimination claim.

We need to consider who is the disadvantaged group here (for the purposes of indirect discrimination claims) and statistically that is women, not men, because statistically they have a greater role than men in raising children. Yet the male employee in question is detrimentally affected in exactly the same way by the full-time-working requirement and so could now pursue an indirect sex discrimination claim himself.

There are only a handful of cases at the moment and so it remains to be seen just how far the effect of them will stretch and whether other cases follow them. However we now all need to think carefully about whether an employee or worker who at first look isn’t covered by the Equality Act could bring a case on the coat-tails of a protected group.

Simon Martin
Partner & Solicitor, Menzies Law

Email Simon

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