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We've been posting recently about the new Equality Act which came into force on 1 October 2010, and have highlighted a number of ways this new piece of employment law may impact Employers.
However there is one element of the new Equality Act that is causing some confusion and much concern amongst Employers - Discrimination by association.
So what do this form of discrimination actually mean?
Well Discrimination by association is a new form of discrimination which, courtesy of the new Equality Act, has now been given statutory backing.
So what does it mean? Well in simple terms, any person may now be eligible to bring a claim even though they themselves do not possess the protected characteristic, but are associated to someone who does.
In the case of Coleman v Attridge Law and Steve Law, Ms Coleman, who cared for her severely disabled son brought a claim against her former employers. Ms Coleman claimed that she was criticised for taking time off and accused of using her son's disability to her own advantage, which created a hostile working environment and ultimately resulted in her being disciplined.
In this case, the Employment Tribunal referred the case to the European Court of Justice (ECJ) and it was the Advocate General's opinion that direct discrimination and harassment on the grounds of association with disabled people is unlawful but at the time this wasn't a legally binding decision, however with the introduction of the new Equality Act Discrimination by Association now has a statutory backing in domestic law.
Things Employers need to consider:
Are your company's equal opportunities policies fit for purpose? They may need to be reviewed to expressly refer to discrimination by association.
Is your flexible working policy clear and transparent? Extra care should be taken when handling flexible working requests from carers of elderly or disabled people because if you are seen to be treating them less fairly than another employee whose circumstances aren't materially different (eg. childcare) you could find yourself on the wrong side of this legislation and facing a costly employment tribunal claim.
Not sure if your company's HR polcies are up to date with current legislation? Need help in getting clarity when it comes to the complexity of employment law?