Claim of victimisation 'by association' should not have been struck out

Thompson v London Central Bus Company Ltd

In this case, the Employment Appeal Tribunal (“EAT”) found that the tribunal was wrong to strike out a claim of victimisation ‘by association’.

The Claimant was employed as a bus driver for London Central Bus Company (“LCB”). The Claimant was dismissed by LCB for giving his high-visibility vest to another employee. Although he was reinstated on appeal, he claimed that the decision to take action against him in relation to the matter was an act of victimisation.

Although the Claimant did not claim to have done a protected act himself, he asserted that he was subjected to a detriment because of a protected act done by others. The Claimant stated that he had relayed to a manager a conversation he had overheard in which other employees accused the company of having breached the Equality Act. The Claimant argued that the manager thereafter ‘associated’ him with those employees and their protected act and that this was the reason for his treatment.

The Employment Tribunal concluded that the Claimant had no prospect of success in his contention because the associations between the Claimant and the employees who did the protected acts were so tenuous.

At the appeal the EAT found that the Employment Judge had erred in law in seeking a particular form or degree of association for the purpose of a claim of associative victimisation. What matters is whether the treatment of the Claimant was by reason of his association with another who made protected acts.

In Practice

Employment Partner Kate Fretten says, "This case serves as a warning to employers that they may be open to a claim if a worker informs them of a complaint actually being made by a colleague or colleagues. It has widened the scope for victimisation claims considerably, which to date have been fairly rarely brought in the employment tribunal."

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.