Guilt by association

Under the Equality Act it is possible to make a claim for associative discrimination or victimisation. In Thompson v London Central Bus Company Ltd, the Employment Appeal Tribunal (EAT) held that an employee’s membership of a trade union which had protested about protected acts could result in an employee being victimised by association.

Basic facts

Mr Thompson, a bus driver, was dismissed after he gave his high-visibility vest to another employee when he was already subject to a final written warning for another disciplinary offence. He then appealed successfully and was given a final written warning instead.

In the period between the hearing and the appeal he started tribunal proceedings for unfair dismissal and victimisation on the ground that he was associated in the mind of his manager, Mr Goodger, with other employees in the same trade union as him who had committed a protected act. Mr Thompson argued that the disciplinary allegations relating to the high visibility vest were the consequence of that association.

After a preliminary hearing, a second employment judge was asked to decide as part of a striking out application whether Mr Thompson’s claim had any prospect of success.

Relevant law

Section 27 of the Equality Act states that victimisation occurs if someone is treated badly by their employer because they brought proceedings under the Act, made allegations of a breach of the Act, gave evidence or information in connection with proceedings that someone else brought under the Act.

Tribunal decision

The tribunal judge struck out Mr Thompson’s claim on the basis that it was too tenuous. Apart from the fact that it was not clear what the protected act involved, the judge held that the only association between Mr Thompson and the individuals who had done them was their membership of the same trade union.

In any event, the judge did not think that repeating the contents of a conversation could give rise to the form of association necessary to found a complaint of associative victimisation. He therefore struck out Mr Thompson’s claim because it had no prospect of success.

EAT decision

The EAT allowed the appeal, holding that it was an error of law for the judge to pre-empt the determination of a full hearing by striking out when there was a “crucial core of disputed facts”.

The principal reason given by the judge was that the links or associations between Mr Thompson and the individuals who did the protected acts were so tenuous that he could not seek the protection of section 27. This in turn was linked to his doubt that membership of the same trade union could give rise to the kind of association necessary for the purposes of section 27. This reasoning was not, however, open to the judge on a striking out application as he had already assumed what kind of association might suffice for the purposes of section 27 without hearing the evidence.

The EAT could see no reason why membership of the same trade union could not give rise to the form of association necessary to found a complaint of associative victimisation. Indeed, 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. Instead the question that the tribunal should have asked was whether the treatment of the employee was by reason of the protected acts done by others.

The EAT therefore remitted the application for strike-out.