By Daniel Dyal
In Thompson v London Central Bus Company UKEAT 0108_15_2007 Mr Thompson claimed that he was victimised because of a protected act. The twist was that he did not do the protected act himself. The protected act was done by another employee with whom, Mr Thompson claimed, management associated him. Mr Thompson was a member of the same trade union as the person who had done the protected act and this appeared to be the basis of the association.
At a Preliminary Hearing (‘PH’) the employment tribunal decided that in principle the Equality Act 2010 protected employees against associative victimisation. It held that it was unlawful to subject employee A to a detriment because of employee B’s protected act. This decision was not the subject of the appeal but is important background.
A further PH was listed to determine whether Mr Thompson’s complaint of associative discrimination had any reasonable prospect of success on the facts. At the second PH the claim was struck-out. Essentially, this was on the basis that the type of association alleged was of the wrong sort, or was too weak, “to found a complaint of associative victimisation”.
The EAT, HHJ Richardson, allowed Mr Thompson’s appeal. It held that no particular form of association was required. Indeed ‘association’ is not as such of the essence at all. The issue is what the reason for the treatment is and if it is a protected act, no matter who did it, then the treatment is unlawful.
This case is further evidence of two things. Firstly, that the boundaries of equality law and litigation are shifting. It has long been established that ‘associative discrimination’ is protected in law (since Robin Allen QC and Paul Michell won Coleman v Attridge  ICR 242). This is a good example of that principle being pushed a little further. Secondly, that striking out a discrimination (or victimisation) claim is and remains a perilous business. It is probably fair to say (based on the facts as recorded in the transcript of the EAT’s decision) that the Claimant has an uphill battle at trial to prove that the protected act relied on was the reason for the treatment. That, however, is simply no basis for striking out.