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.

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