Can a limited company bring a claim that it has been directly discriminated against where it suffers detrimental treatment because of the protected characteristic of someone with whom it is associated? Yes, said the Employment Appeal Tribunal (EAT) in the recent case of EAD Solicitors LLP and others v Abrams UKEAT/0054/15/DM.
Mr Abrams was a member of a limited liability partnership (LLP). He was due to retire at 62. As he approached retirement, for tax reasons he had set up a limited company to take his place as a member of the LLP. From this point, Mr Abrams was no longer an employee or worker and had no continuing contractual relationship with the LLP; instead, his services were provided through the limited company. The limited company, as a member of the LLP, was entitled to receive the profit share that Mr Abrams would have received had he continued as a member.
When Mr Abrams reached retirement age, the LLP no longer wanted to receive his services and objected to the limited company he had set up continuing as a member of the LLP. A dispute arose over whether the limited company continued to be a member of the LLP, and whether it had suffered any detriment by reason of the age of Mr Abrams.
As a preliminary issue, the LLP argued that the limited company was not entitled to bring a claim of discrimination under the Equality Act 2010 (EqA 2010), on the basis that:
These arguments were rejected by the employment judge at first instance, and also by the EAT. The EAT held that:
At first blush it may seem odd to think in terms of a company being the subject of discrimination, and it is fair to say that the facts of this case are relatively unusual. However, it is not difficult to see other situations in which a company may be treated less favourably by association with a protected characteristic. Examples given by the EAT include a company being shunned commercially because it is seen to employ a Jewish or ethnic workforce, or a company that loses a contract because of pursuing a particular religious ethic. This case makes clear that such treatment would be prohibited.