Associative discrimination is a form of direct discrimination. Direct discrimination is when person A is treated less favourably by B because of a protected characteristic. Associative discrimination occurs when A is treated less favourably based on a protected characteristic held by someone associated with them. This form of discrimination is illustrated by the case of Graham v Gravity Supply Chain Solutions.
The Claimant was the head of business partnerships for the software company Gravity and began his employment in 2015. The Claimant’s wife was diagnosed with stage 4 breast cancer in 2019. The Claimant was permitted to work flexibly so that he could balance the demands of his job with care for his wife and son. In reality the Claimant was regularly working extremely long hours in order to accommodate the differing time zones of the offices.
In 2021 the Claimant reached out to the CEO Mr Parker to say he was not coping; this coincided with his wife’s health worsening. The Claimant took annual leave and then sick leave. At this point his access to IT systems and emails was blocked.
The Claimant attended a zoom call one month into his absence. He attended this meeting from the car park of the hospital. The CEO and the HR manager were in attendance although the CEO did not switch his camera on. The tribunal accepted the Claimant’s position that this was because he was aware that the conversation would be challenging. The CEO informed the Claimant that he was to be demoted. His new role would be paid over a third less than his current position, but the hours were much less demanding, so it was framed as a supportive measure.
Additionally, the Claimant’s pay during his absence was reduced to SSP. This was despite a contractual provision which provided for four months of full pay company sick pay. It was claimed that this payment was discretionary.
After two months of absence the Claimant resumed work, but his access was not restored. He was informed that he could go on garden leave for six months or take the role he was offered, and he had a week to decide and was required to do no work until then. The Claimant raised a grievance, and this was not investigated.
The Claimant’s employment was terminated in December 2021. The reason given for this was a breach of trust and confidence due to the “manner in which” the Claimant had asked for his four months of sick pay. The email also stated “In any event, the need for your current position has now ceased and we therefore believe that your role is now redundant. We have offered you an alternative role on many occasions which you have refused.”
The Claimant was successful in his claims of disability discrimination and unfair dismissal. The tribunal set out that the detriments suffered were: reduction of sick pay, demotion, no access to email and IT network and dismissal. The tribunal concluded that the Claimant’s wife’s disability was a “material and significant reason” for the Respondent’s behaviour. They concluded that the CEO was acting on his perception of what this disability would mean for the business and the Claimant’s ability to do his job as her condition worsened. The Tribunal found that these plans for the structure of the business had long been considered and for the Respondent this was a convenient reason to implement them rather than offering the Claimant the support he required.
This case demonstrates the dangers of associative discrimination and is a reminder to employers to handle such matters sensitively and supportively.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.