UK: Associative Discrimination

Last Updated: 14 May 2009
Article by Robert Hill, Nick Dent and Adam Lambert

We examine a recent case before the EAT which significantly widens the scope of discrimination legislation.

In the recent case of Saini v All Saints Haque Centre, Bungay and Paul (2008) the EAT has confirmed that employees can bring claims for religious discrimination based on not just their own religion or belief but based on the religion or belief of a third party, known as "associative discrimination". This decision follows the recent line of case law on associative discrimination.

Legal background

At the heart of this case was the interpretation of The Employment Equality (Religion or Belief) Regulations 2003 ("The Regulations"), which implement the religious discrimination elements of the EC Equal Treatment Directive 2000/78 ("The Directive") into UK law.

Regulation 5 of The Regulations states that harassment on the grounds of religion will occur where "on the grounds of ...religion or belief", A engages in unwanted conduct which has the purpose or effect of (a) violating B's dignity; or (b) creating a hostile, degrading, humiliating environment for B.

By way of background, the courts are required, "so far as possible", to interpret the Regulations in line with the Directive. The courts are able to insert some words into domestic legislation to implement the intention of the Directive, but they must not distort the meaning of the domestic legislation in order to do so. Where the national court is unsure whether it can interpret the national law to give effect to the intention of the Directive, it can refer the issue to the ECJ. Where it is unable to give effect to the Directive it must apply the national law but Parliament will then be required to change the national law to match the Directive.

Facts

The claimant, Mr Saini, was an immigration advice worker. Both he and his manager, Mr Chandel, were of the Hindu faith and brought claims against their employer for unfair and wrongful dismissal as well as discrimination on the grounds of their religion. Mr Chandel alleged that he had been discriminated against on the grounds of his religion by a group of employees who were adherents of the Ravidass faith. The claimant alleged that he was discriminated against because the second and third respondents wanted to get rid of Mr Chandel because of Mr Chandel's faith.

Both Mr Chandel and the claimant were successful in proving that they had been unfairly and wrongfully dismissed. However, although Mr Chandel was successful in his discrimination claim, the claimant was not. At first instance, the tribunal held that, although the claimant had been subjected to behaviour which would satisfy the test for harassment under Regulation 5, it could not find in his favour as, on the facts, the respondents' conduct was not motivated by the fact that the claimant himself was Hindu, but in order to remove Mr Chandel because Mr Chandel was a Hindu.

Decision

The Employment Appeal Tribunal ("EAT") considered whether, where the Regulations required that the discrimination must be "on the grounds of ...religion or belief" this limited the scope of the Regulations to the claimant's religion or whether it could apply if the difference in treatment was due to the religion of a third party.

The EAT held that the words "on the grounds of" did not limit the Regulation to the religion of the claimant. The Regulation was triggered where the claimant was treated less favourably because of the religion of a third party.

The EAT, therefore, disagreed with the Tribunal and held that harassment on the grounds of religion "will be breached not only where an employee is harassed on the grounds that he holds certain religious...beliefs but also where he is harassed because someone else holds certain religious or other beliefs."

The EAT took strength from the race discrimination case of Showboat Entertainment Centre Limited v Owens (1984) in which an employee was held to have been discriminated against "on racial grounds" for refusing to comply with his employer's instruction to discriminate against black customers. The EAT also referred to the recent case of Coleman v Attridge Law (2008) which extended the scope of associative discrimination further, by holding that the claimant had been discriminated against on the grounds of disability where she suffered a difference in treatment because her son was disabled. In that case, the EAT held that unlawful discrimination under the Directive is triggered "as soon as we have ascertained that the basis for the employer's conduct is one of the prohibited grounds" and not solely when it takes place in relation to "a particular category of person".

In this case, the claimant only appealed the finding that he had not been harassed on religious grounds, and did not appeal the finding that he had not been directly discriminated against. However, arguably, based on the EAT's reasoning, the claimant should also have been successful on his direct discrimination claim.

Commentary - how does this affect UK law?

As the Directive provides the basis for not only religious discrimination but also the prohibition of disability, age and sexual orientation discrimination, it is likely that this decision will widen the scope of those strands of discrimination to include associative discrimination.

Having said that, it is unclear whether the UK's domestic legislation can be interpreted in line with the Directive. Although, in the Coleman case, the ECJ ruled that the Directive does require member states to prohibit associative discrimination and the matter has been referred back to the tribunal, the employers have made a second appeal from the tribunal to the EAT arguing that the Regulations cannot be interpreted in this way, as it would distort both their meaning and Parliament's intention.

If it is held that it is not possible for the Regulations under the Directive to include associative discrimination, Parliament may be forced to redraft the Regulations. In that case, until the Regulations are redrafted it will not be possible for private sector employees to bring associative discrimination claims against employers, and the only remedy that potential complainants will have will be against the Government for failing to implement the Directive properly.

The future

This decision could impact on the Government's proposal to draft a single equality bill to harmonise the strands of discrimination and equality laws.

  • Although the Government had stated that it had intended to prohibit discrimination by association with a transgender only, it is likely that it will be required to prohibit associative discrimination for the other strands of discrimination covered by the Directive (age, sexual orientation and disability).
  • Unless the Government agrees to extend associative discrimination outside of those covered by Directive 2000/78, this decision will also not affect the other grounds of discrimination (such as sex, maternity and pregnancy), as those strands of discrimination do not use the same wording and are limited to the characteristics of the complainant. For example, in a sex discrimination claim, a woman must show that she was treated less favourably "on the grounds of her sex" not on the grounds of a third party's sex.

Impact for employers

  • This decision significantly widens the scope of discrimination legislation. It means that the discrimination legislation can potentially apply to all employees if their employer subjects them to a difference in treatment, and that treatment is on the grounds of age, religion or belief, or disability even if that characteristic belongs to a third party.
  • Employers should therefore ensure that their equal opportunities policies prohibit not only an employee discriminating against another employee on the grounds of that person's religion or belief, disability, age and sexual orientation (and, in light of the Showboat case, race) but also that their policy prohibits any employee from treating another employee less favourably on the grounds that they or anyone else has one of these characteristics.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions