"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
In 2008 the ECJ made it clear that you didn’t actually have to be disabled yourself to bring a direct disability discrimination claim, provided that you were discriminated against because of your association with a person who is disabled. It was previously thought that this principle of ‘associative discrimination’ only applied in cases of direct discrimination or harassment. However, following the case of Thompson v London Central Bus Company Ltd employers will now need to be wary that the same principle applies in cases of victimisation. In this case it was held that where an employee is victimised, the employee can claim even when the protected act is carried out by another person, provided that they are victimised because of that act. Furthermore, the recent hearing by the Employment Appeal Tribunal makes it clear that there is no requirement for there to be a special relationship in existence between the person who is victimised and the person who carries out the protected act.
The Claimant was a bus driver who was dismissed for giving his high-visibility vest to another employee. He brought claims for unfair dismissal, notice pay and victimisation. He also appealed internally against his dismissal. The Claimant ended up changing his stance by apologising and admitting he was in the wrong, which led to his employer instead revising its decision to 21 days unpaid suspension and a final written warning. The Claimant dropped the unfair dismissal and notice pay claims, but pursued his claim for victimisation relating to the disciplinary action taken against him.
The definition of victimisation is contained within section 27 of the Equality Act, which provides that;
A person (A) victimises another person (B) if A subjects B to a detriment because –
a) B does a protected act, or
b) A believes B has done, or may do, a protected act.
Protected acts are, for example, acts such as making a discrimination claim, complaining about harassment or giving witness evidence regarding an employee’s discrimination complaint. In the current case, the Claimant had overheard a conversation involving colleagues (the conversation being the protected act), where it had been stated that certain employees had previously been deliberately targeted for opposing alleged wrongdoing by former management. The Claimant belonged to the same Trade Union as the employee who had carried out the protected act. The Claimant later relayed this conversation to his manager. The Claimant argued it was the fact that he had passed on this message that led to the disciplinary action being taken against him, since the employer had in some way associated the protected act with the Claimant himself.
The first preliminary hearing made an important decision on the law. It was held that despite the fact that a literal interpretation of the relevant legislation (in italics above) clearly means that it must be the Claimant who does the protected act, to ensure compliance with EU obligations it was held that the victimisation must occur simply “because of the protected act”. Thus, associative victimisation is a legitimate claim that can be brought in principle. This finding was extremely important but was not challenged on appeal.
The second preliminary hearing resulted in the strike out of the claim. This was because the Judge considered that there was only a weak connection between the Claimant and the employee, since they were merely part of the same trade union. The Judge additionally struck out the claim because he considered that ‘awareness of the contents of a conversation subsequently repeated cannot, without more, amount to association for the purpose of the concept of associative victimisation’.
The EAT disagreed with the decision to strike out the claim. The existence of some particular kind of relationship between the complainant and the employee carrying out the protected act was not necessary; therefore there could be instances where a person who belonged to the same trade union as another could rely upon the protected act of the other to claim victimisation. The overriding question was whether, as a matter of fact, the Claimant had been victimised by reason of the protected act of another. The question is ‘fact-sensitive’ and the Judge was wrong to strike out the claim, as in doing so he denied the Claimant the opportunity to present evidence as to how his treatment was associated with the protected act.
The fact that employees can now also claim victimisation by association, particularly given that there is no need for the existence of a special relationship between the employee and the person who carries out the protected act, generally heightens the risk of successful victimisation claims against employers. The assertion by the EAT that the association may be partly in the mind of the employer makes it all the more essential that disciplinary procedures are properly followed with reasons for disciplinary action being thoroughly considered and documented, particularly where there are other on-going issues or difficulties within an organisation.
Should you have any questions about the issues raised in this blog, please contact a member of the Employment team.
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