A round up of the latest HR and Employment Law updates and related stories.  

VICTIMISATION BY ASSOCIATION

The Equality Act 2010 makes it unlawful for an employer to victimise an employee by subjecting him to any detriment if that “victim” has committed a “protected act,” or his employer thinks that he has or may do so. A “protected act” includes any allegations of breaches of the Equality Act or in effect “speaking out” against such breaches.

In the case of Thompson v London Central Bus Company Limited UKEAT/0108/15/DM, Mr Thompson was employed as a bus driver by London Central Bus Company Limited and was allegedly dismissed because he gave a high-visibility vest provided to him by his employer, to another employee.

Initially Mr. Thompson brought claims for unfair dismissal, notice pay and victimisation but as a result of his employer’s internal investigations he was reinstated to his job so that only his claim for victimisation progressed to a Tribunal.

However, according to Mr. Thompson he had been subject to victimisation “by association” because his employers associated him with other employees who had committed protected acts. This apparently came about after Mr. Thompson had advised the employer’s management that he had overheard a conversation where it was suggested that his employers “targeted” certain employees who had claimed the employers were in breach of the Equality Act (i.e. a “protected act”). Mr. Thompson said that it was only after this conversation with the management that disciplinary action against him started and was because he and the “associated” employees (i.e. those making their claims about management) were all members of the same trade union.

Mr. Thompson’s initial claim was to the Employment Tribunal who agreed victimisation by association was possible, but requested that a second hearing. This found that the link between those employees who had committed a “protected act” and Mr Thompson was insufficient (too tenuous) and therefore his claim was dismissed.

Mr Thompson appealed to the Employment Appeal Tribunal who, taking a different view, found that it was “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.”

On this basis the Employment Appeal Tribunal held that there was no need for a particular relationship to be established between Mr Thompson and the employees who had committed the “protected acts” – it was a matter of fact. So, in this case the fact that they were all members of the same trade union could be enough.

Instead, the Tribunal stated that that is was important whether Mr Thompson’s treatment was because of his association with anyone else who had committed a “protected act,” Mr Thompson’s appeal was allowed.

Conclusion

This case is important because, like the week 37 case here, it moves towards broadening the potential for claims of victimisation and discrimination by association generally.

This latest case means an employee needs to show that they were treated less favourably because of another person’s protected act or protected characteristic, irrespective of any link/relationship between them and the other. Having said that, of course if there is only a loose link, the employee may have more difficulties in proving his claim.

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