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Discrimination by association: handle with care
Martha Arnold considers the implications of the ECJ’s ruling in Coleman v Attridge Law, in which an employee alleged that she suffered discrimination from her employer because of her disabled son.
Ms Coleman, was employed as a legal secretary at Attridge Law, and submitted a claim for unfair constructive dismissal, disability discrimination and harassment. Whilst Ms Coleman was not herself disabled, she has been discriminated by association due to the fact that she had a disabled son for whom she was the primary carer. Ms Coleman alleged that Attridge Law treated her less favourably than colleagues who had non-disabled children in that: she was not offered her previous role back following maternity leave; was not given the same opportunities for flexible working as other employees of Attridge Law who were parents of non-disabled children; and that she was subject to verbal abuse related to the fact that her son was disabled and related to her request to work flexibly to care for her son.
Whilst the legislation prohibiting discrimination on the grounds of race, sexual orientation and religion, the legislation prohibiting discrimination on the grounds of disability, age and sex has not been drafted in a way which envisaged protection for those affected by association nor has it been interpreted in such a way to date. The Disability Discrimination Act 1995 (“DDA”) defines direct discrimination as “if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person”. Therefore, adopting a literal interpretation of the provision would not allow for protection by association.
The Employment Tribunal referred several questions to the European Court of Justice (“ECJ”) for a preliminary ruling namely: whether Directive 2000/78/EC (“the Directive”) (which the DDA sought to implement) only protects people who are themselves disabled from direct discrimination and harassment or also protects employees who are treated less favourably on the ground of their association with a disabled person; and whether harassment and direct discrimination on the grounds of association with a disabled person is in breach of the principle of equal treatment established by the Directive.
The ECJ ruled that the Directive does provide for protection from discrimination by association as argued by Ms Coleman. It focussed on the language of the Directive which states at Article 1 that its purpose was to “lay down a general framework for combating discrimination on the grounds of… disability…” etc rather than on the grounds of the individual’s, disability etc. The Directive goes on to prohibit “…direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1…”
It is now for the Employment Tribunal to decide whether the DDA can be interpreted in a way that enforces the Directive in prohibiting discrimination by association and if it does, for it to assess Ms Coleman’s case.
This case is highly significant for employers and carers of disabled people and also to carers of the elderly or the young as the Employment Equality (Age) Regulations 2006 (“the Age Regulations”) stem from the same Directive as the DDA and the ECJ’s ruling applies by analogy to the Age Regulations.
Employees in the public sector can take the benefit of the ECJ’s ruling irrespective of the approach adopted by the Tribunal as the Directive is directly enforceable against public bodies, whereas those in the private sector need to wait for the outcome of the case.
If the Tribunal takes the view that the DDA cannot be interpreted in accordance with the Directive then the government will be under an obligation to amend the existing DDA. This would provide employers with a window in which to adapt to the coming changes.
There are a number of potential problem areas for employers to watch out for, such as in dealing with flexible working applications from carers, and subjecting employees to a disciplinary procedure due to poor attendance record where those employees may be carers. Employees who request to work flexibly in order to care for young children or aging parents and are then less favourably treated now may seek to argue that they have suffered age discrimination due to the fact that they have a young child or caring responsibility for an elderly person. There will also be practical difficulties for employers in establishing which employees are carers of disabled individuals, the elderly or the young. In particular, assessing whether the individual being cared for meets the definition of disabled in the DDA will be a practically difficult and sensitive task.
Perhaps of some relief to employers is that Ms Coleman’s claim was not for indirect disability discrimination and so the ECJ has not issued a ruling as to whether there can be indirect discrimination by association. If the law developed in this way this would have more widely reaching consequences as employers would need to consider reviewing their policies and handbooks to assess whether any of the provision, criterion’s or practices (PCP’s) impact disproportionately on employee’s who care for the disabled, elderly or the young. The ECJ has also clarified the position with respect to reasonable adjustments, ruling that employers are not under a duty to consider whether reasonable adjustments are necessary in respect of employees who care for a disabled person.
Employers can prepare for the potential changes by being aware of the potential for claims and adopting practices to seek to avoid them, such as, implementing training of relevant employees, involving HR and employment law professionals in decision making and revising policies.