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INTRODUCTION

A focal point of contemporary jurisprudence is employment law because of its perpetually


dynamic principles, which comes as a result of constant individual circumstances.
Discrimination is an important and difficult facet of employment law because of the
variations of it that can sometimes be difficult to prove. Discrimination, usually described as
a deliberate negative behaviour towards people with certain characteristics, can be
experienced in a variety of ways, but is categorised into two main groups, direct and indirect.
Direct discrimination occurs when someone is treated less favourably -not just differently-
than another person because they have or are thought to have a protected
characteristic.
1
Associative discrimination, introduced to offer recourse to third party
individuals affected by the direct discrimination of people who have a protected
characteristic, is a sub-category of direct discrimination.Case law has also shown that it is not
necessary to have an actual association between the claimant and a person with a protected
characteristic; it is sufficient for the protected characteristic to be the reason for the treatment.
The courts have developed this principle since it was first recognised in race discrimination
cases, to cover many other areas of unlawful discrimination, and while it can still be
considered to be a novelty concept, it has been accepted to be imperative to the courts
inclination to fairness.

DEVELOPMENT OF ASSOCIATIVE DISCRIMINATION

A person discriminates against another ifon racial grounds he treats that other less
favourably than he treats or would treat other persons.
2
On racial grounds is the most

1
Alex Davies (ed). Workplace Law Handbook 2011 - Employment Law and Human Resources Handbook pg.
204. Also see s.1 RRA 1976, replaced by s 13 Equality Act 2010
2
Race Relations Act 1976, s1
significant part of this definition because the EAT has read it to allow race discrimination by
association with someone of a protected characteristic.
Associative discrimination was discussed in previous cases, but not until Showboat
Entertainment Centre Ltd. v. Owen
3
was it officially adjudicated. In this case, the employee,
a white manager of an amusement arcade, was dismissed because he refused to execute a
racially discriminatory instruction from his employers, which involved the exclusion of
young blacks from the premises. Section 30 of the Race Relations Act 1976 (RRA)
provides that it is unlawful for a person who has authority over another person to instruct
him to do any act which is unlawful by virtue of Part II or III of the Act (Part II deals with
discrimination in the employment field and Part III with other unlawful acts). Unfortunately,
though, that section does not give an individual a right of complaint to a tribunal, only the
Commission for Equality and Human Rights.
4
Due to this, the courts decided that it was
unfair to people who were discriminated against and decided to find a way to give justice
within the confines of legislation. In Showboat, the Industrial Tribunal decided that it was
possible for Mr. Owen to be directly discriminated by association, emphasising that the term
'on racial grounds' under s3(1)of the RRA is to be given a wide interpretation consistent with
the intention of Parliament to prohibit all forms of racial discrimination. Although higher
courts have told the Tribunal to avoid reading outside of the literal meaning of legislations,
ignoring that in this case seemed apropos as it sought the purposive intent by following a
statement in Lord Dennings judgement in Nothman v Barnet London Borough
Council,
5
which states that Whenever the strict interpretation of a statute gives rise to an
absurd and unjust situation, the judges can and should use their good sense to remedy it by

3
[1984] 1 W.L.R. 384
4
s.30(2)(a), RRA 1976
5
[1978] 1 W.L.R. 220.Para. 228
reading words in, if necessary so as to do what Parliament would have done, had they had
the situation in mind.
The employer subsequently appealed to the Employment Appeal Tribunal (EAT) claiming
that the Act should be read verbatim and applied literally, in that a person is unlawfully
directly discriminated against on racial grounds under s 1(1)(a)b of the RRA only when the
discrimination relates to the race of the complainant, and therefore it should not be possible
for Mr. Owen to make a claim of unfair treatment suffered by him because of another
persons race. However, the EAT upheld the decision and Browne-Wilkinson J giving the
judgment stated: Certainly the main thrust of the legislation is to give protection to those
discriminated against on the grounds of their own racial characteristics. But the words on
racial grounds are perfectly capable in their ordinary sense of covering any reason for an
action based on race, whether it be the race of the person affected by the action or of others.
6


The first suggestion of a principle like associative discrimination came from Lord Dennings
judgement in Applin v Race Relations Board.
7
The foster parents in this case were being
incited, but refused to succumb to the pressure, to accept only white children into their
home by the racist, National Front (NF) party. This subsequently caused the Race Relations
Boardto bring a claim on the grounds that it was illegal to pressure a person to discriminate
against another by virtue of sections 2 and 12 of the Race Relations Act 1968. Lord Denning
M.R. stated that by insisting on white children, Mr. and Mrs. Watson would be
discriminating against the local authorities themselves.
8
He also quoted an example whereby
if two white women frequently went to a public house with coloured men and one day the
innkeeper told them that they were not allowed if they were accompanied by the men,

6
Showboat p. 70B
7
[1973] Q.B. 815
8
Ibid. p. 828
hewould be discriminating against the two women. Lord Denning agreed by saying, The
definition of discrimination [section 1(1) of the RRA 1968] is wide enough to cover the case
of the two women, because they would have been treated less favourably than other women
based on the colour of the people with whom they associated themselves. Similarly, in this
case, Mr. and Mrs. Watson would discriminate against the local authorities on the ground of
colour if they decided to take white children only.Although it was not possible for this case to
set aprecedent because of the enactment of new legislation with different wording, it
evidently influenced subsequent judgements.
Even before Showboat, Applin was first followed by Wilson v T B Steelwork Co Ltd
9
, where
a white woman was refused a job because her husband was black, and later in Zarczynska v
Levy
10
where Kilner-Brown J opined, We are of [the] opinion here that if Parliament had
had pre-knowledge of this unfortunate complainant's predicament they would have made
clear that the great civilised principle upon which the Act was based was one which overrode
all apparent limitations expressed in other sections which had the effect of denying justice to
someone who was victimised. This dictum again suggested that the courts had no problem
reading the RRA to meet the true purpose of the Act.

Associative discrimination re-emerged in the 1999 Law Reports when the Court of Appeal
(CoA) adjudicated Weathersfield Ltd v. Sargent.
11
Mrs. Sargent, an employee at a vehicle
rental company, resigned after she was instructed by a senior employee to tell ethnic
minorities that there were no vehicles available when they called to enquire.The
representation for the employers unsuccessfully argued the same point as Showboat, stating
that the precedent should be overturned because of an error of law.Pill LJ stated that

9
Industrial Tribunal (Case Number 23662/77
10
[1979] 1 W.L.R. 125
11
[1999] I.C.R. 425
Showboatshould not be overruled and the phrase on racial groundsshould be given a broad
meaning because it was justified and appropriate.
12


In Redfearn v Serco
13
the EATs reversal of an unfair dismissal claimwas clearly fact-based,
but there was a perverse logic that caused the CoA to overturn the decision. Mr. Redfearn
was a bus driver who worked with and transported a largely Asian community and when he
decided to become a candidate for the British National Party -whose views are known to be
primarily racist- concerns were raised and he was subsequently dismissed. He claimed that he
was dismissed on the grounds of the ethnic origin of the members of the public as well as his
colleagues, but the employers claimed that they dismissed him on grounds of health and
safety, fearing violence from fellow employees and Asian members of the public. The initial
hearing saw the Tribunal reject the claim, but the EAT reversed it, basing its argument on the
fact that if Mr.Redfearn was dismissed for being a racist, then it was on racial grounds,
which would, theoretically, constitute an unfair dismissal based on the RRA 1976. The CoA
accepted that the reasoning in Showboatjustified a finding that Mr.Redfearns dismissal was
based on health and safety rather than race, as well as that Showboatwas not confined to
cases of unlawful instruction to discriminate. Discrimination by association does not cover all
cases where race is a significant factor in the act of the alleged discriminator because in cases
such as Redfearn, a racist employee would have recourse for being racist, which is against the
purpose of the Act. The EATs decision seems to imply that if one person at work was
involved in acts of racial harassment against another person, and after being disciplined for
those acts, he/she would have the protection of the courts against their punishment. Deciding
in Mr.Redfearns favour would set a dangerous precedent for cases where someone
committing racially discriminatory acts would have race discrimination claims themselves if

12
Ibid. p.16
13
[2006] IRLR 623
they were dismissed on those grounds. The CoA clearly felt that the purposes of the
legislation would not be fulfilled, i.e., to prevent racial discrimination, not to protect people
who share racist sentiments.

OTHER AREAS OF ASSOCIATIVE DISCRIMINATION


Despite having its roots in race discrimination, associative discrimination has been extended
tomany other areas of discrimination. The Equality Act 2010 now includes age, disability,
gender reassignment and sex as areas where it is possible for a party to experience associative
discrimination, but it still does not includethe characteristics of marriage, civil partnership,
pregnancy and maternity.
In Saini v All Saints Haque Centre,
14
regulation 5(1)(b) of the Employment Equality (Religion
or Belief) Regulations 2003, which implemented religious discrimination elements of the EC
Employment Equality Directive 2000/78 was read to fulfil the purposive intent of religious
third party discrimination.
The judgement in Coleman v Attridge Law
15
was important because the ECJ stated that
associative discriminationis outlawed by Directive 2000/78.As a result, it will be possible for
claims to be made on the grounds of a discrimination due to association with a disabled
person, for example an employee being discriminated against or harassed because they are
the parent of a disabled child.
However, the ET and EAT agreed that a man could not bring a claim for associative
discrimination on the grounds of pregnancy or maternity, as stated earlier, which was the case
in Kulikaoskas v McDuff Shellfish.
16



14
[2009] 1 C.M.L.R. 38
15
C-303/06
16
UKEATS/0063/09/BI


CONCLUSION

As highlighted in this paper, associative discrimination, in its short existence, has covered a
wide scope and serves an important purpose in the courts inclination to fairness. The judges
have readily interpreted statute to fulfil the obvious intention of parliament and will continue
to do so in order to avoid a perversion of justice. It is an indubitable fact that case law and
possibly legislation will emerge to address the other forms of discrimination.

















BIBLIOGRAPHY

Applin v Race Relations Board [1973] Q.B. 815
Coleman v Attridge Law C-303/06
Kulikaoskas v McDuff Shellfish UKEATS/0063/09/BI
Nothman v Barnet London Borough Council [1978] 1 W.L.R. 220. Para. 228
Redfearn v Serco [2006] IRLR 623
Saini v All Saints Haque Centre [2009] 1 C.M.L.R. 38
Showboat Entertainment Centre Ltd. v. Owen[1984] 1 W.L.R. 384
Weathersfield Ltd v. Sargent[1999] I.C.R. 425
Wilson v T B Steelwork Co LtdIndustrial Tribunal (Case Number 23662/77
Zarczynska v Levy[1979] 1 W.L.R. 125

Equality Act 2010
Race Relations Act 1976

Alex Davies (ed). Workplace Law Handbook 2011 - Employment Law and Human
Resources Handbook (Workplace Law Group) 2010