A series of recent cases has raised an interesting new dimension to the concept of associative discrimination under the Equality Act, potentially widening the scope for individuals to claim indirect discrimination by association. This has opened up the possibility for an employee to claim that they are subject to a "detriment" under the Equality Act 2010, without themselves having the protected characteristic in question. For example, if a policy disadvantages those with childcare responsibilities, it is currently accepted that this would more likely be detrimental to women. The recent cases suggest a possible argument that men, who also have childcare responsibilities and may suffer the same disadvantage, may also be able to bring an indirect discrimination claim.

How has this come about?

The roots of this argument go back to the 2015 decision of the European Court of Justice (ECJ) in CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia. This concerned a claim in which an electricity provider, which usually installed electricity meters less than two metres above the ground, installed them on pylons 6-7 metres above ground in areas with a majority population of Roma travellers. This was found to be discriminatory under an EU Race Equality Directive on racial grounds.

That is, so far, fairly unremarkable. Where it becomes interesting is that this claim was brought by a non-Roma, who lived in a majority Roma area. This meant she did not have the relevant protected characteristic which underpinned the claim of discrimination. The ECJ said that the measures taken by the electricity company amounted to unlawful discrimination, and that this covered not only those who had the relevant ethnic origin but also those who "suffered together" with those that did. This meant that the claimant in CHEZ was successful, even though they were not a Roma and therefore did not themselves possess the relevant protected characteristic.

CHEZ was built on further by a UK employment tribunal in 2021, in Follows v. Nationwide Building Society. In this case, the claimant's mother was disabled, and the claimant's working pattern had been changed to let her care for her mother. In a tranche of redundancies, the claimant was dismissed, despite a sufficient number of other employees volunteering for redundancy. The focus of this type of associative discrimination is different from CHEZ. Ms Follows' claim was based on her association with her disabled mother, not on the fact that she suffered the same disadvantage as someone who was disabled.

The tribunal applied CHEZ and said that the claimant had been unlawfully dismissed and had also suffered indirect disability discrimination by association. This case is only a tribunal decision and so other tribunals do not have to follow it, but it does raise the possibility of a wider interpretation of the Equality Act than perhaps previously generally understood. It may allow individuals to bring claims by association even though they themselves do not have the protected characteristic in question.

These cases both feed into the most recent development in this area, a preliminary decision in the Reading Employment Tribunal from December 2022: Rollett & others v. British Airways plc. In this case, the respondent made certain changes to shift patterns which allegedly constituted indirect racial discrimination, as the changes made life more difficult for employees commuting from mainland Europe, but not for those living in the UK. The lead claimant in this case lived in continental Europe and therefore suffered in the same way as those harmed by the change to shift patterns. However, this claimant was British, and therefore did not have the protected characteristic of race.

The tribunal likened this treatment to CHEZ-type more than Follows-type discrimination. In applying CHEZ, the tribunal decided that, unless there was any legislation to the contrary, national laws must be applied "as far as possible" to give effect to a related EU directive, meaning the European laws referred to in CHEZ were relevant here. This was referred to as "associative discrimination" by the tribunal, but could also be thought of as "suffering together discrimination". The tribunal said that it did have jurisdiction to consider the British claimant's claim for associative indirect discrimination.

What impact might "suffering together discrimination" have?

It will be interesting to see how the tribunal decides this issue at full hearing and to watch developments in this area. In the meantime, employers should be alert to the possibility of claimants raising discrimination arguments, even if they do not have the relevant protected characteristic for a conventional indirect discrimination claim.