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Discrimination “by association” - Coleman v Attridge Law
25 July 2008
The European Court of Justice (ECJ) has now
ruled that protection from discrimination under the Equal Treatment
Framework Directive extends not only to disabled people, but also
carers of disabled people.
It is estimated that six million people in
Britain provide unpaid care for disabled people. Many of these have
full-time or part-time jobs elsewhere. In our previous bulletin on
18 February 2008, ‘Advocate-General's opinions on discrimination
by association and accrual of holiday’, we reported that the
Advocate General had handed down his opinion that employees who
provide such care should be protected from discrimination in their
employment.
History of the case
Sharon Coleman claims that she was forced to
resign from her position as a legal secretary with Attridge Law.
Although not disabled herself, her son suffers from congenital
breathing difficulties and requires specialist care. Following her
return to work after the birth of her son Ms Coleman alleges that
was singled out by her employer for discriminatory treatment
because of her disabled son. Ms Coleman said she was described as
"lazy" when she asked for time off to look after her child, and
that she was refused permission to work from home, when her child
needed an operation.
The Disability Discrimination Act 1995 (DDA)
prohibits discrimination against a disabled person “on the
ground of the disabled person’s disability.” In the London
South Employment Tribunal Ms Coleman argued that the Directive
(which the DDA is supposed to implement) actually goes further and
prohibits any discrimination on the grounds of disability even if
the victim was not disabled.
The Tribunal decided it was necessary to refer
the matter to the ECJ for a ruling on the application of the
Directive.
The Advocate-General’s
opinion
The Advocate-General handed down his opinion
on 31 January 2008 and said the Directive does afford protection to
non-disabled people who suffer discrimination and / or harassment
because they are associated with a disabled person.
The Advocate-General reasoned that targeting a
disabled person is not the only way of discriminating against
them. He said that there were other more subtle ways of doing
so, such as undermining the dignity and autonomy of those closely
associated with the disabled person. Further, he said “A robust
conception of equality entails that these subtler forms of
discrimination are also caught by anti-discrimination
legislation.”
The ECJ’s ruling
The ECJ has, as it does in the majority of
cases, come to the same conclusion as the Advocate General and
concluded that Ms Coleman falls within the Directive’s protection.
The Court held that the purpose of the Directive was to combat all
forms of discrimination on the grounds of disability.
The Court said that to deny someone in Ms
Coleman’s position the right to rely on the Directive would
undermine the objective of the Directive and its effectiveness.
What happens next?
The London South Employment Tribunal now has
to consider the case, taking the ECJ’s ruling into consideration.
The DDA does not expressly cover discrimination by association with
a disabled person. This means that the Tribunal has to try to
interpret the DDA in a way which includes discrimination by
association, without distorting the words of the statute. If the
Tribunal finds that this is not possible, Ms Coleman’s claim will
fail. Her only option then is to claim against the Government for
not properly implementing the Directive.
What does this mean for
employers?
One peculiarity of European Union law is that
the situation differs depending on whether you are in the private
or public sector.
Private Sector employers will
have to wait until the outcome of the tribunal’s decision in Ms
Coleman’s case to know where they currently stand in relation to
discrimination by association. The long term position will be
the same, however. Either the tribunal will decide in Ms
Coleman’s favour on the point or the DDA will have to be amended to
include discrimination by association.
Public Sector employers on
the other hand are affected already as the ECJ makes it clear that
the Directive is clear in its intention as regards discrimination
by association and employees in the public sector will be able to
rely on this in support of claims similar to that of Ms
Coleman.
As such employers should consider:
- Amending their diversity / equal opportunities policies to
cover discrimination on the grounds that a person is a carer of a
disabled person; and
- Treat requests for flexible working from employees wishing to
care for disabled relatives with the same care as is required for
requests from, for example, new mothers. (Note that, with the
changes last April to the regulations on flexible working requests,
employers must in any event follow the prescribed procedure when
presented with a request for flexible working to look after a
dependent adult.)
In the longer term
In the UK, discrimination legislation has
developed on a piecemeal basis, leading to different results in
different areas of discrimination. Discrimination by
association is already prohibited in the fields of race, religion
or belief and sexual orientation. However, it seems that in
the cases of sex, marital or civil partnership status and age the
alleged discrimination must relate to an actual characteristic of
the complainant, not an individual associated with them, albeit
that the definition of sexual harassment was widened earlier this
year. These Regulations may, therefore, also require amendment.
However, the Directive covers all these heads
of discrimination (with the exception of marital or civil
partnership status). Therefore, in the public sector at least, it
is arguably the case that discrimination in employment is
prohibited on the grounds of a person associated with the
complainant, rather than the complainant themselves.
One thing the ECJ’s judgment certainly will do
is ignite the debate on discrimination law in the UK and feed into
thinking on the proposed Equality Bill.
For more information or advice, please contact Dawn Lobley or Iain Patterson.
The content of this bulletin is provided for
the purposes of general interest and information. It contains only
brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
legal advice and does not provide a substitute for it.