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Associative Discrimination

The topic of associative discrimination has been brought back into the spotlight after the judgement of the recent case of Truman v Bibby Distribution Ltd.

Associative discrimination covers discrimination against an individual who is directly associated with another individual possessing one or more protected characteristics. There is no requirement for the individual to possess the protected characteristic themselves. Protected characteristics are as follows:

  • Age;
  • Disability;
  • Gender reassignment;
  • Marriage and civil partnership;
  • Pregnancy and maternity;
  • Race;
  • Religion or belief;
  • Sex; and
  • Sexual orientation.

Any individual who is treated less favourably than the way others are treated, due to being associated with another who has a protected characteristic, can claim they have been discriminated against.

Associated discrimination does not apply to marriage and civil partnership, and pregnancy and maternity. Discrimination against a woman arising from pregnancy and maternity requires it to be “a pregnancy of hers” or because “she has given birth”. Discrimination as a result of these protected characteristics, therefore, requires the individual to possess them himself or herself.

The recent case of Truman v Bibby Distribution Ltd applied the law in relation to associated discrimination. In the case, the claimant was dismissed after he informed his employer that he will have an increase of responsibilities for his daughter, who suffers from cystic fibrosis. The dismissal happened on his one year’s service anniversary for that employer without a performance improvement process, nor any identification of dissatisfaction with his performance. On that day he would have acquired the option to take time off work as unpaid parental leave. The claimant’s case for associative discrimination was successful, due to him being dismissed because he was associated with a person possessing a protected characteristic (his daughter).

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Nicola Mullineux

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