(1)A person (A) must not discriminate against another (B) if—
(a)the discrimination arises out of and is closely connected to a relationship which used to exist between them, and
(b)conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act.
(2)A person (A) must not harass another (B) if—
(a)the harassment arises out of and is closely connected to a relationship which used to exist between them, and
(b)conduct of a description constituting the harassment would, if it occurred during the relationship, contravene this Act.
(3)It does not matter whether the relationship ends before or after the commencement of this section.
(4)A duty to make reasonable adjustments applies to A if B is placed at a substantial disadvantage as mentioned in section 20.
(5)For the purposes of subsection (4), sections 20, 21 and 22 and the applicable Schedules are to be construed as if the relationship had not ended.
(6)For the purposes of Part 9 (enforcement), a contravention of this section relates to the Part of this Act that would have been contravened if the relationship had not ended.
(7)But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A.
Cases considering section 108 24
[2024] EWCA Civ 676 · 19 June 2024Interprets
Interprets section 108 as prohibiting discrimination after a relationship ends where the discrimination arises out of and is closely connected to the former relationship and is of a kind that would contravene the Act during that relationship. (see paras [60]-[65]; [72])
Interprets section 108(1) as imposing two conditions for post-relationship discrimination: a close connection with the former relationship and conduct of a description that would contravene the Act during that relationship. (see paras [60]-[65])
Applies the close-connection requirement to a statutory gratuity payable only to former police officers for injuries sustained in the execution of duty. The alleged discrimination arose out of and was closely connected to the former police relationship. (see paras [67]-[68])
Interprets the words concerning conduct that would contravene the Act during the relationship as identifying the type of prohibited conduct, not as requiring that the conduct could have occurred during the relationship. The alleged rule therefore fell within the jurisdictional description. (see paras [61]-[65]; [69]-[70])
Cited only.
[2015] EWCA Civ 52 · 6 February 2015Limits
The provision confers rights on ex-employees in terms similar to former section 20A of the 1975 Act, but expressly applies only to acts of discrimination. Its wording therefore did not expressly cater for ex-employee victimisation claims. (see paras [29]-[30])
The provision specifically covers harassment after employment has ended but contains no corresponding provision for victimisation. The omission was treated as a drafting error and corrected by statutory interpretation. (see paras [29]-[30])
[2014] EWCA Civ 185 · 26 February 2014Limits
The subsection expressly prohibits discrimination arising out of and closely connected to an ended relationship where equivalent conduct during the relationship would contravene the Act. To correct the drafting omission, discrimination in this subsection may be read as including victimisation. (see paras [19]; [42]-[48])
The subsection expressly prohibits harassment arising out of and closely connected to an ended relationship. Its juxtaposition with section 108(1), without an express victimisation provision, revealed the drafting omission but did not establish an intention to permit post-termination victimisation. (see paras [19]; [28]-[36]; [43]-[47])
The subsection assigns contraventions concerning ended relationships to the enforcement regime applicable to the underlying relationship. Its wording did not provide a coherent explanation for section 108(7). (see paras [19]; [45])
The subsection’s intended effect was opaque. It appeared to exclude overlapping discrimination or harassment claims where conduct also amounted to victimisation, but supplied no rational indication that post-termination victimisation was intended to be lawful. It could have no meaning inconsistent with such victimisation being prohibited. (see paras [35]; [43]-[49])
7 more judgments, and what each says about section 108, are in the
case-law panel in the full Act.
349.This section makes it unlawful to discriminate against or harass someone after a relationship covered by the Act has ended.
350.It covers any former relationship in which the Act prohibits one person from discriminating against or harassing another, such as in employment, or in the provision of goods, facilities and services. It is designed to ensure that treatment of the kind made unlawful by the Act which results from, and is closely linked to, the existence of a relationship is still unlawful even though the relationship no longer exists.
351.This provision applies to conduct which takes place after the Act is commenced, whether or not the relationship in question ended before that date. If the conduct occurred before this section was commenced, it would be dealt with under the previous legislation.
352.This section also requires reasonable adjustments to be made for disabled people even after a relationship has ended, if they continue to be at a substantial disadvantage in comparison with people without a disability. A person will be considered to have discriminated against a disabled person if he or she fails to comply with the duty to make reasonable adjustments.
353.A breach of this section triggers the same enforcement procedures as if the treatment had occurred during the relationship. However, if the treatment which is being challenged constitutes victimisation, it will be dealt with under the victimisation provisions and not under this section.
354.This section replaces similar provisions in previous legislation. It also extends the protection after a relationship has ended to cover discrimination outside the workplace because of religion or belief and sexual orientation. It will provide similar protection against age discrimination and harassment outside the workplace when the age protection provisions are commenced.