· 2 min read · Features

Anti-discrimination policies must include discrimination by association and perception

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Equality laws exist to prevent those with a protected characteristic being discriminated against because of that characteristic. Protected characteristics include age, disability, gender, sexual orientation, race, religion/belief, marriage/civil partnership, pregnancy/maternity and gender reassignment.

Over the past couple of years, the protection of equality laws has extended to employees who do not have any protected characteristics at all, if they are perceived to have a protected characteristic or have a sufficiently close ‘association' with someone with such a characteristic.

The case of Coleman vs Attridge Law involved a carer who requested time off to look after her disabled son and extended protection against disability discrimination to those ‘associated' with a disabled person.

In English vs Thomas Sanderson Blinds, English was heterosexual, but he was still protected from homophobic ‘banter' by the Equality Act (Sexual Orientation) Regulations 2003.

This means an employee who is subjected to joking about their partner's disability or a friend's sexual orientation may be able to bring a claim. Similarly, an employee (or job applicant) who was heterosexual, but perceived to be gay, lesbian or bisexual (perhaps because of mannerisms or rumours) would be protected.

Discrimination by association or perception doesn't currently apply to all protected characteristics because of the way our legislation is drafted. But when the Equality Act comes into force in October 2010 discrimination by perception and association will be extended to cover all protected characteristics. Even if the Conservative Party gains power in the General Election and decides (as it has indicated) to re-examine the Act, it is unlikely that this provision will change.

Employers need to check their harassment/bullying, flexible working, recruitment and any other anti-discrimination polices. Policies need to make it clear that any discriminatory behaviour will not be tolerated, regardless of whether a person with a protected characteristic will witness it or not. Remember, you and your employees may be unaware that a colleague has an association with someone with a protected characteristic. 

Training is vital and you may want to make it part of an employee's formal induction. It is important to remember that new employees may not have had equality training elsewhere and you will want everyone to have awareness of equality issues. There are several excellent internet/computer training packages available. Some organisations take the approach of training managers first and asking them to train their staff and actively promote equality awareness in their day-to-day management duties. Depending on the size of employer, training need not always be formal - for very small employers a lunchtime discussion and active promotion of equality along with comprehensive equality policies may be sufficient.

Should the worst happen and you end up defending a tribunal claim, if you can show that you have done everything you could reasonably be expected to do to prevent discrimination (for example, put appropriate training and policies in place) then you have established a potential defence. A tribunal will be a lot more sympathetic to an employer that has evidence they have tried to promote equality awareness than to one who has not taken appropriate steps.

Smaller employers are unlikely to have the range of policies and resources to access training that a larger employer would have. Tribunals will take this into account when looking at what it is reasonable to expect an employer to do. However, whatever your size, it is vital that your staff know that discriminatory behaviour is unacceptable and, when it occurs, that you follow it up with appropriate measures. What is appropriate will depend on the situation. Often the employees involved will not realise that their behavior may give offence. In these situations an informal chat from the person affected (if he or she is comfortable doing this) or a manager may be sufficient to prevent any serious issues arising. Where the incident is more serious, or if the employee has repeated the same unacceptable behaviour several times, more formal disciplinary action may be appropriate.

What is key is that you create an inclusive atmosphere in your workplace where harassing and discriminatory behaviour is treated appropriately and where employees are comfortable to seek help if necessary. If such an atmosphere exists, there is hope you can sort out any difficulties directly with your employees, long before a tribunal claim crosses anyone's mind.

Lucinda Bromfield is a solicitor and employment specialist at Bevans Solicitors