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Insights // 09 March 2015

Can an Employee Suffer Victimisation on the Basis of Another Employee’s Act?

Partner Sue Dowling, head of our Employment law team, explores whether an employee can suffer victimisation on the basis of another employee’s act.

It is established law that an employee can suffer direct discrimination or harassment by their association with someone who possesses a ‘protected characteristic’ under the Equality Act 2010 (EA 2010). The question has now been raised as to whether an employee can suffer victimisation by association.

What is Victimisation?  

Victimisation occurs where a person has been subjected to a detriment because they have done or may do a ‘protected act’. A protected act includes bringing proceedings under the EA 2010 (i.e. bringing a claim for discrimination) and giving evidence or information in connection with proceedings under the EA 2010 (regardless of who brought those proceedings). The victimisation must therefore be connected with the discrimination provisions under the EA 2010. 

Under the strict wording of the EA 2010, the individual who has suffered the detriment is required to have done the protected act. 

However, following the case of Thompson v London Central Bus Company UKEAT/0108/15, individuals may be able to bring a claim for associative victimisation where they are subjected to a detriment because a third party has committed a protected act. 

The Facts 

Mr Thompson was a bus driver for London Central Bus Company Ltd (LCBCL). Following an incident in which he gave his high visibility vest to another employee, he was dismissed (having already been given a final written warning for an earlier disciplinary offence). Mr Thompson raised an internal appeal and issued claims for unfair dismissal, notice pay and victimisation.

Mr Thompson’s internal appeal was successful and the dismissal decision was substituted by a 21 day unpaid suspension and a final written warning. His claims for unfair dismissal and notice pay fell away but he sought to proceed with the victimisation claim. 

Mr Thompson said that he had advised his manager that he had overheard a conversation in which it was suggested that LCBCL had previously dismissed employees who had committed protected acts under the EA 2010. 

He alleged that, as a result, he was ‘associated’ in the mind of his employer with the protected acts of others and as a consequence was subjected to disciplinary proceedings. He also argued that he was ‘associated’ by virtue of the fact that he was a member of the same trade union. 

First preliminary hearing 

The employment tribunal found that although the EA 2010 requires the protected act to be done by the person who has suffered the detriment, it should be read purposively to comply with EU law to include circumstances where the protected act is committed by a third party. 

However, a further preliminary hearing was required in order to assess the casual connection between Mr Thompson and his fellow employees.

Second preliminary hearing 

The claim was struck out on the basis of the tenuous link between Mr Thompson and those who performed the protected acts.  The tribunal expressed doubt that being a member of the same trade union could give rise to the necessary association and it was not clear that there was a causal link between the protected act and the alleged detriment. 

Mr Thompson appealed. 

The Decision 

The Employment Appeal Tribunal (EAT) was not asked to consider whether a claim for associative victimisation could be brought under the EA 2010, but whether a particular type of association between the victim and the third party was necessary. 

The EAT ruled that an ‘associative’ claim does not depend on a particular relationship between the claimant and the third party being established. Any link between the claimant and the third party could exist ‘wholly or in part in the mind of the employer’. The issue is whether, on the facts, the third party’s protected act was the reason for the detriment to the claimant.

Furthermore, there was no reason for the tribunal to conclude that membership of the same trade union would not give rise to the necessary association. The EAT considered that it was ‘entirely possible to conceive 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’. 

Accordingly, the appeal was allowed. 

Practical advice

The EAT was not asked to consider whether the provisions relating to victimisation in the EA 2010 should extend to associative claims. Whilst persuasive, the tribunal’s decision may not be the final word on whether such claims are permissible under the Act. 

However it is an indication that claims for associative discrimination are expanding, not contracting and employers should ensure that: 

  • managers do not treat individuals less favourably because allegations of discrimination have been made, whether by the individuals themselves or others; and 
  • steps are taken to avoid such claims from arising which will usually include having appropriate policies in place and ensuring that these are understood and observed by staff.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Sue Dowling

Sue Dowling

Partner, Employment Law & Venue Licensing

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