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Widening the scope of associative discrimination

Since the introduction of the Equality Act 2010, the courts have shown willingness to extend the scope of direct associative discrimination claims. This has widened legal protection beyond those claimants with protected characteristics, to those who associate with someone who has a protected characteristic. Before 2010, the position on discrimination by association was unclear. UK law changed following the European Court of Justice decision in Coleman v Attridge Law and another [2008], in which the court held that a carer of a disabled person could bring a disability discrimination claim, even though the carer herself was not disabled.

Case study

In the high-profile case Lee v McArthur and Ashers Baking Company Limited [2016], the Northern Ireland Court of Appeal considered whether a claimant is protected against discrimination for their association with a ‘community’ that shares a protected characteristic, rather than direct association with a particular individual.

In this case, Mr Lee, a homosexual man, ordered a cake decorated with an image of Sesame Street characters Bert and Ernie and the text ‘support gay marriage’. The bakery was owned by Christian directors Mr and Mrs McArthur, who were opposed to the introduction of same-sex marriage in Northern Ireland, and refused to bake the cake.  

Initially, the county court held that this was directly discriminatory against Mr Lee on the grounds of his sexual orientation. The Court of Appeal upheld this decision, but noted that the county court's reasoning was not correct. The claim was in fact one of direct associative discrimination. Mr Lee was discriminated against for supporting same-sex marriage and therefore for his association with the homosexual and bisexual community, as opposed to his own sexuality. Many heterosexual people also support same-sex marriage; this is not an exclusive trait of someone who is themselves homosexual or bisexual. Indeed, the bakery owners said they would have still discriminated against a heterosexual person requesting the same cake – it was the message and not Mr Lee's sexuality that led to the bakery's refusal.

The Court of Appeal has rejected the Attorney General's request for a further appeal. The bakery owners have said that they will directly seek leave to appeal from the Supreme Court – so it remains to be seen whether this decision will be reconsidered.

What are the implications of this decision?

This decision significantly widens the scope of associative discrimination claims. It means that, whereas previously claimants could bring claims for discrimination in respect of their association with a particular individual who possesses a protected characteristic, they can now bring claims for their association with a ‘community’ that shares a protected characteristic. It also implies that the ideas or beliefs held by such communities could be protected under discrimination law, which has potentially far-reaching consequences. Difficulties could arise where the rights of freedom of conscience and speech of the providers of goods or services conflict with the beliefs of the community.

What is the relevance to employers?

Employers should ensure that:

  • there are policies in place that ensure that employees allow equality of access to, and enjoyment of, the employer's goods and services by all groups in society, particularly where those groups have protected characteristics;
  • discrimination by employees towards customers is prohibited in disciplinary rules; and
  • training should be given to employees so they understand that they must not discriminate in the provision of good or services.

Employers may also wish to consider consulting with customers, employees and representatives of groups that share protected characteristics about how their organisation could be more inclusive.

Virginia Allen is a senior associate and Isobel Phillips a trainee in the employment team at Dentons

Added: 28-02-2017

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