Associative Discrimination

We examine a recent case before the EAT which

significantly widens the scope of discrimination

legislation.

In the recent case of Saini v All Saints Haque Centre,

Bungay and Paul (2008) the EAT has confirmed that

employees can bring claims for religious discrimination based on

not just their own religion or belief but based on the religion or

belief of a third party, known as "associative

discrimination". This decision follows the recent line of case

law on associative discrimination.

Legal background

At the heart of this case was the interpretation of The

Employment Equality (Religion or Belief) Regulations 2003

("The Regulations"), which implement the religious

discrimination elements of the EC Equal Treatment Directive 2000/78

("The Directive") into UK law.

Regulation 5 of The Regulations states that harassment on the

grounds of religion will occur where "on the grounds

of ...religion or belief", A engages in unwanted

conduct which has the purpose or effect of (a) violating B's

dignity; or (b) creating a hostile, degrading, humiliating

environment for B.

By way of background, the courts are required, "so far as

possible", to interpret the Regulations in line with the

Directive. The courts are able to insert some words into domestic

legislation to implement the intention of the Directive, but they

must not distort the meaning of the domestic legislation in order

to do so. Where the national court is unsure whether it can

interpret the national law to give effect to the intention of the

Directive, it can refer the issue to the ECJ. Where it is unable to

give effect to the Directive it must apply the national law but

Parliament will then be required to change the national law to

match the Directive.

Facts

The claimant, Mr Saini, was an immigration advice worker. Both

he and his manager, Mr Chandel, were of the Hindu faith and brought

claims against their employer for unfair and wrongful dismissal as

well as discrimination on the grounds of their religion. Mr Chandel

alleged that he had been discriminated against on the grounds of

his religion by a group of employees who were adherents of the

Ravidass faith. The claimant alleged that he was discriminated

against because the second and third respondents wanted to get rid

of Mr Chandel because of Mr Chandel's faith.

Both Mr Chandel and the claimant were successful in proving that

they had been unfairly and wrongfully dismissed. However, although

Mr Chandel was successful in his discrimination...