The decision by the House of Lords to reject an Equality Bill amendment aimed at clarifying the law on discrimination by association could cause increased tribunal claims and employer confusion.
The Lords threw out the amendment last week after they agreed discrimination by association and perception was already covered in the Bill through direct discrimination clauses and by case law – most notably the Coleman v Attridge Law ruling.
The amendment was tabled by Herman Ouseley, who called for a clear statement in the Bill that people associated with minority groups and those perceived to have a protected characteristic were covered by anti-discrimination legislation.
But Rachel Dineley, an employment partner and head of diversity and discrimination at law firm Beachcroft, told Personnel Today the law covering discrimination by association and perception in the Bill was “not sufficiently clear” and this could lead to increased tribunal claims as employers were left uncertain about their responsibilities.
She said: “[The amendment’s exclusion from the Bill] will undoubtedly generate more litigation because of the uncertainty that it creates. More people will want to challenge the ruling if employers are discriminating by association and it’s not very clear that under the law what they are doing is wrong.
“No employer large or small would have any excuse if it was in the Equality Bill,” she added.
Employment experts warned employers were not aware of the protection surrounding perception of, and association with, protected characteristics if it was not explicitly written into the Bill.
Chris Ball, chief executive of The Age and Employment Network, said: “Some employers won’t know about it if it’s not in the Bill. It’s more likely that they will know what’s in the law if it’s there in the Bill.”
But Selwyn Blythe, employment partner at law firm Pinsent Masons, said employers were unlikely to read the Equality Bill so the exclusion of the amendment would not impact their understanding of the law.
He said: “I can understand why stakeholders might want it to be explicit because then it would be easier for people to understand what it means, but I don’t think employers really go back to Acts of parliament.”
He added: “The Bill, as it is written, already covers associative and perceptive discrimination.”
Claire Reynolds, policy spokeswoman at equality campaign group Opportunity Now, added while it was “disappointing” that the amendment had failed, many employers were now starting to tackle this type of discrimination in the workplace and best practice was beginning to spread.