Avoiding Associative Discrimination

An employee who was dismissed by a Belfast advice centre has won a discrimination claim in the Court of Appeal.

An employment tribunal found that Maria McKeith’s dismissal from the Ardoyne Association was linked to her role as primary carer for her disabled daughter.

The Equality Act 2010 that employers in the rest of the UK are now familiar with does not apply in Northern Ireland. Disability discrimination law in Northern Ireland is still governed by the Disability Discrimination Act 1995 (DDA), which used to apply also to the rest of the UK. However, since this area is devolved, the DDA has been substantially amended by the Northern Ireland Assembly.

It remains unlawful under both Acts for an employer to discriminate against an employee associated with a disabled person by reason of that association.

Ms McKeith worked part-time for Ardoyne from 2010 until her redundancy dismissal in March 2015.

She was awarded £10,000 for injury to feelings, £6,760 for loss of earnings, and a total of £2,126 in interest by the Tribunal.

The Court of Appeal has ruled that the employee’s managers believed “because the claimant had a disabled child, her position was not properly in the workplace. Her daughter was ‘her priority”.

In rejecting the Association’s appeal, the Court summarised: “People who are disabled themselves, or who are the primary carer of a disabled person, have a right to work within the protection afforded by the 1995 Act.”

Following the outcome, Dr Michael Wardlow, Chief Commissioner of the Equality Commission issued a timely reminder to employers that discrimination law in the UK protects employees against associative discrimination and that the purpose of the law is to assist disabled people and their primary carers to obtain work and to integrate them in to the workplace.

What is associative discrimination?

Associative Discrimination occurs when somebody who doesn’t have a protected characteristic themselves is discriminated against because of their association with another person belonging to a relevant protected group – for example a carer for a disabled relative.

Initially, it was considered that such discrimination was limited to direct discrimination and harassment. However, in recent years, case law has indicated that associative discrimination claims may also be possible in respect of indirect discrimination and victimisation. In CHEZ Razpredelenie Bulgaria (C-83/14) the ECJ held that the concept of associative discrimination could in principle be extended to indirect discrimination, whilst in Thompson v London Central Bus Company Ltd UKEAT/0108/15, the EAT considered a claim for associative victimisation.

Lessons for employers:

Notably, in the case of Hainsworth v Ministry of Defence, the Court of Appeal has previously confirmed that employers have no obligation to make reasonable adjustments under section 20 of the Equality Act 2010, for non-disabled employees, including those who are associated with a disabled person.

However, the recent example of Ms McKeith highlights that employers should take extra care when handling issues involving absence, flexible working and performance management if dealing with staff who may be caring for a disabled dependent. While there may be no obligation to make adjustments, an employer cannot treat an employee unfavourably as a result of their connection with a disabled person.

As ever, open dialogue, empathy and cooperative communication between the parties helps avoid the risk of potential discrimination claims.

Pam Loch is Managing Partner and Gavin Macgregor is an Employment Lawyer of niche employment law practice, Loch Employment Law.

For advise or more information regarding discrimination please contact our Employment Laywers at info@lochlaw.co.uk or call us on 01892 773970

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