In Thompson v London Central Bus Company Ltd, the EAT has held that a tribunal was wrong to strike out a claim of victimisation ‘by association’. The tribunal, having accepted that an individual may claim victimisation based on the protected act of a third party, was wrong to find that a particular form or degree of association would be necessary in order for the claim to succeed.
T, a bus driver, was dismissed by LCB Ltd for having given his high-visibility vest to another employee. Although he was reinstated on appeal, he claimed that the decision to take action against him in relation to the matter was an act of victimisation. Under S.27 of the Equality Act 2010, 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 that person has done a protected act). Although T 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. He claimed that he had relayed to a manager a conversation he had overheard in which other employees accused the company of having breached the EqA. T claimed that the manager thereafter ‘associated’ him with those employees and their protected act and that this was the reason for his treatment.
An employment judge considered the case at a preliminary hearing. The employment judge considered that S.27 EqA had to be read to cover the situation where the reason for the detriment is the protected act of another person. Thus, if an individual is subjected to a detriment ‘because of a protected act’, he or she would come within S.27. However, the judge was uncertain whether the necessary causal connection was satisfied on the facts. The judge noted that T was apparently arguing that he was subjected to a detriment because he relayed a conversation to a manager and not because he was ‘associated’ with any protected acts. The judge also considered that T was only ‘loosely’ associated with the other employees, being a member of the same trade union. At a further preliminary hearing, a different employment judge decided this issue against T. The judge concluded that ‘awareness of the contents of a conversation subsequently repeated cannot, without more, amount to association for the purpose of the concept of associative victimisation’. The employment judge struck out T’s claim on the basis that it had no reasonable prospect of success. T appealed to the EAT.
The EAT allowed the appeal, holding that the employment judge was wrong to strike out the claim. The judge’s conclusion that the link between T and the individuals who did the protected acts was so tenuous that T was not afforded the protection of S.27 EqA, and his doubt that membership of the same trade union could give rise to the necessary kind of association, was not open to him without hearing evidence as to what kind of association might suffice for the purposes of S.27. The EAT pointed out that, following the EAT’s decision in EBR Attridge LLP and anor v Coleman (Brief 891), so-called ‘associative’ discrimination does not depend on the existence of a particular kind of relationship but on whether, as a matter of fact, the protected act of a third party was part of the reason for the employer’s treatment of the employee. Here, there was no reason for the employment judge to think that membership of the same trade union could never give rise to the form of association necessary to found a complaint of associative victimisation. In the EAT’s view, it is entirely possible to conceive of a situation where an employee’s membership of an organisation, which had protested about protected acts, might cause an employer to treat the employee in a detrimental way. The EAT accordingly remitted the application for strike-out.
Link to transcript: http://www.bailii.org/uk/
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