Associative discrimination and harassment

The definition of direct discrimination is broad enough to prohibit discrimination against a person who does not have the protected characteristic because they associate with someone who does. For example, it would be discrimination to harass someone because their son is disabled.

Similarly, it is discrimination to harass someone by using insulting language linked to the protected characteristic, even though everybody knows the individual does not have the protected characteristic. For example, it would be sexual orientation discrimination to harass a heterosexual man by using homophobic insults, even though everyone knows the target of the harassment is not gay (first established in English v Thomas Sanderson Ltd [2008] EWCA Civ 1421).

Note that protection against associative discrimination does not extend to the protected characteristics of pregnancy, maternity, marriage or civil partnership.

The prohibition of associative discrimination does not extend to the duty to make reasonable adjustments for disability (see page 172). In other words, an employer is not obliged to make reasonable adjustments to enable an employee to cope with someone else’s disability, for example, a worker’s need to adjust their hours to care for their disabled son (although there is a right to request flexible working (see page 238)). The law is currently under challenge in the Employment Tribunal in the case of Peaden v Methodist Church, 2013 (source: Equal Opportunities Review, Michael Rubenstein Publishing). This is a claim by a Methodist minister with an autistic son. He argues that the church’s policy of requiring ministers to change parish every five years adversely affects his son’s wellbeing.