Navigating associative discrimination: supporting employees associated with someone who has a terminal diagnosis

July 4, 2024

When an employee's loved one faces a terminal diagnosis, it not only affects them personally, but can also send ripples through the workplace. As employers, the challenge extends beyond the realms of professional support to the more nuanced need to have an understanding of associative discrimination.

This form of discrimination occurs where workers are treated unfairly due to their association with someone who has a protected characteristic - in this case, a disability. For a case of associative discrimination to be considered, it is not always necessary for a claimant to prove a close relationship between the individual claiming unfair treatment and the person with the protected characteristic. When a job applicant or employee brings a discrimination claim in an employment tribunal, the focus should be on whether the discrimination occurred because of the protected characteristic of the associated person, not necessarily the depth of the connection between the complainant and the individual with that characteristic. This whole issue can be somewhat ambiguous.

Associative discrimination can manifest in various forms within the workplace, ranging from biased actions during the hiring process to unfair treatment regarding compensation and benefits; terms and conditions of employment; opportunities for promotion, transfer and training; as well as in situations involving dismissal and redundancy.

It is important for employers to understand the legal frameworks, emotional considerations and the practical support systems that can make a significant difference in the lives of employees who are associated with someone who has a protected characteristic. If employers do not do this, they risk legal action being taken against them.

In a recent case, an employment tribunal awarded damages of £89,900 to a software executive after determining that his employer subjected him to discrimination linked to his wife's cancer treatment. The tribunal noted a fundamental lack of sensitivity from the employer regarding his wife's terminal illness. It was found that, despite promises of flexible work to support the claimant's wife, in reality no adjustments were made. The claimant, often working long hours across different time zones, eventually reached breaking point due to lack of sleep and health concerns. After taking leave, he found his work access revoked. He was later demoted alongside receiving a significant pay cut, under the guise of being given the opportunity to focus on his family.

The claimant's sick pay was also reduced to statutory levels, contrary to his contract of employment. Attempts by the claimant to return to full pay were met with blocked access and an ultimatum to either accept a lesser role or leave. The claimant's grievances were not addressed and he was eventually dismissed on grounds that the tribunal found were linked to his wife's health.

The tribunal highlighted an "underlying insensitivity" towards the claimant's wife's condition and ruled that the company's actions were materially influenced by it. The claimant's claims for unfair dismissal and associative direct disability discrimination were upheld.

So how can employers best support employees faced with supporting loved ones going through a terminal illness?

Employers should strive towards creating an inclusive and supportive culture. The stigma around discussing serious illness and death can sometimes lead to silence in the workplace, leaving those supporting a loved one with a terminal illness feeling isolated. Employers have a key role in fostering an environment where open and compassionate communication is encouraged, creating a sense of psychological safety for all employees. This includes supporting not only those with a loved one who has a terminal diagnosis (or indeed has such a diagnosis themselves), but also their colleagues who may have concerns or need guidance.

Educating staff and providing clear guidance on available support, including through HR, can contribute to a caring workplace culture. Alternative support should be provided for those who may not feel comfortable discussing their situation with their direct line manager, and managers themselves should have access to support and guidance, recognising that they too may face challenges in these situations.

Employers should aim to develop a proactive framework to support employees. This framework should encompass clear policies, guidance and training for line managers, and connections to expert health and wellbeing resources.

Employers can also carry out assessments of their company benefits and rewards systems to ensure that they deliver appropriate financial assistance to employees diagnosed with a terminal illness.

Employees supporting someone who is facing a terminal diagnosis may understandably need to take frequent breaks from work, whether for short or extended periods. They often will have to accommodate numerous medical appointments and employers may wish to consider offering paid time-off for these appointments (if they do not already do so).

However, to summarise, navigating the delicate landscape of associative discrimination requires a thoughtful approach from employers. By proactively fostering an empathetic workplace culture and providing support systems, organisations can ensure that employees associated with someone facing a terminal illness, as well as those associated with someone who has a broader protected characteristic, feel valued and supported. It is not just about fulfilling legal obligations and reducing the risk of claims, but about affirming a commitment to the wellbeing of every team member during their most challenging times which can reduce staff turnover and increase performance.