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Associative Discrimination By Way Of Victimisation

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The EAT has considered a claim of victimisation based on protected acts performed by a third party.

It decided the tribunal was legally incorrect to conduct an assessment of the degree of connection or association between the individual and the third party. The proper test was whether the employer subjected the claimant to a detriment by reason of the protected acts of others. The case was remitted to the Tribunal for a rehearing.

Section 27(1) of the Equality Act 2010 (which deals with victimisation) requires the “protected act” to be done by the person suffering the detriment. Crucially, at an earlier preliminary hearing, the tribunal concluded section 27(1) should be read as providing “because of a protected act” in order to comply with EU law, so that it was possible to bring a claim of victimisation by association. This finding remained unchallenged upon appeal and, if correct, would represent a significant shift in discrimination law.

Here is a link to the judgment.

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