The Issue
New case law has recently extended discrimination protection in two ways.
First, less favourable treatment of a worker not by reason of their own personal characteristics but due to their association with another person whose attributes are within scope now attracts discrimination law protection. So, an able bodied secretary called lazy for taking time off to care for her disabled son suffered direct disability discrimination and harassment due to her association with a disabled person, and an advice worker was harassed on the ground of religion or belief not because of his own religion but because of his manager's religion.
Secondly, the Court of Appeal has found that workers can suffer discrimination if their harassment is focussed on an area with discrimination protection even if they themselves do not have the characteristics which that law protects. (In these circumstances there was no third party with the relevant characteristics involved either). So, a manager subjected to homophobic banter by his colleagues was discriminated against on the ground of sexual orientation despite the fact that he was not gay and was not perceived to be gay by his harassers.
The Consequences
Businesses' equal opportunities duty now extends to preventing detriment by reason of a worker's known personal, business or other association with a person whose attributes give discrimination protection. Businesses are now required to look beyond the worker's own personal attributes for risk areas. This has been confirmed by case law in the context of disability, race and religion discrimination. In the context of sex discrimination new regulations have, from April 2008, redefined sexual harassment as unwanted conduct 'related to her sex or that of another person'. The Equality Bill, for publication this year, is expected to protect discrimination by association more generally in legislation in relation to other strands of discrimination such as disability, race, religion and sexual orientation.
More controversially, businesses will be wise also to prevent or otherwise deal with harassing behaviour which has a discrimination protected focus even if the worker neither has that attribute, nor is believed by the harassers to have it, nor is associated with another who has it. While informed opinion suggests that this may not include abuse with a disability or gender basis, it will be likely to apply to behaviour with a sexual orientation, racial or religious focus.
The Solution
- Businesses should supplement their equal opportunities policy to prohibit less favourable treatment or harassment of workers because of association with a disabled person or persons in another protected category. In particular, businesses should ensure that flexible working requests made in order to care for disabled relatives are considered fully and that any refusal is clearly justifiable on permitted grounds.
- Businesses should take action to detect and to stop harassing behaviour (including insidious teasing or taunting) if it relates to any of the characteristics protected by discrimination legislation even where the victim does not possess those characteristics and is neither known nor believed to possess them.
- Employers should keep informed on proposed change through legislation in the Equality Bill as these new categories of protection develop. FSI will publish updates on this.
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.