In the eagerly awaited case of Coleman v Attridge Law & Steve Law, the European Court of Justice (ECJ) has ruled that the EC Equal Treatment Directive (‘the Directive’) prohibits direct discrimination and harassment by association. This ruling will have wide-reaching consequences for employers.
What happened in this case?
Ms Coleman was employed as a legal secretary at Attridge Law. She had a disabled son, for whom she was the primary carer. Ms Coleman brought a claim against both Attridge Law and Steve Law (a partner of Attridge Law), alleging that she had been discriminated against because she had a disabled child. In particular, she alleged that she had been unfairly constructively dismissed, that she had been treated less favourably than other employees at Attridge Law, and that she had been harassed and victimised, all because she was the primary carer of a disabled child. For example, she alleged that she had been described as “lazy” when she requested time off to care for her child (whereas parents of non-disabled children were allowed time off), that abusive and insulting comments were made about her and her child, and that she was refused the same flexibility that was given to colleagues who had non-disabled children.
The problem facing the Employment Tribunal was that, on the face of it, the Disability Discrimination Act 1995 (DDA) only gave protection against discrimination on grounds of disability to those who are themselves disabled, which would mean that Ms Coleman’s claim would be bound to fail. However, she argued that the DDA should be interpreted in line with the Directive, and that the Directive did in fact prohibit discrimination where the reason for the discrimination is another person’s disability (i.e. discrimination by association).
The Employment Tribunal decided, before making any finding, to refer a number of questions to the ECJ as it was unclear to the Employment Tribunal whether the Directive did in fact prohibit discrimination by association. The Advocate General handed down his opinion in January 2008 (as reported in a previous edition of Human Capital) and the ECJ has now issued its judgment.
The ECJ has held that the Directive does indeed prohibit discrimination by association and therefore those who are discriminated against on the grounds of another person’s disability should receive protection against such less favourable treatment. Equally, harassment on the grounds of someone else’s disability is also prohibited under the Directive. The principal reason for this is because the Directive prohibits discrimination “on the grounds of …. disability” and, in the case of discrimination by association, the reason for the discrimination is the disability, even though the party being discriminated against is not disabled. The ECJ also placed great importance on the philosophy behind the Directive, which was to combat every form of discrimination. If discrimination by association were not covered, the ECJ commented that the objective of the Directive would be undermined.
The case will now return to the Employment Tribunal, which will consider whether the DDA can be interpreted in line with the Directive and whether Ms Coleman had in fact been discriminated against. The Employment Tribunal must, so far as possible, interpret the DDA in accordance with the Directive and can depart from a strict application of the DDA wording if necessary to do so. At an earlier Employment Appeal Tribunal (EAT) hearing (at which Attridge Law was arguing the matter should not be referred to the ECJ), the EAT commented that, in its view, the DDA could be interpreted so as to include discrimination by association.
What does this mean for employers?
This case will have far-reaching implications for employers, both in the private and public sectors.
In the case of public sector employers, the Directive has direct effect and employees will therefore now be able to claim discrimination by association. For private sector employers, the position will depend on the findings of the Employment Tribunal. If the DDA can be interpreted in line with the Directive, then the same will apply. If the DDA cannot be interpreted in line with the Directive, private sector employers will have some breathing space until the Government amends the DDA so as to bring it in line with the Directive, as it would be required to in those circumstances.
One of the key implications of this decision will be in relation to carers of disabled persons. If an employee requests to work flexibly in order to care for a disabled person, the employer will need not only to consider the request in accordance with current flexible working legislation, but also to ensure that such carers are not treated less favourably that those who request to work flexibly in order to care for non-disabled persons.
A practical difficulty for employers resulting out of this decision will be in identifying whether the person with whom the employee is associated is in fact disabled. For example, if an employee requests time off to care for a disabled relative, how will the employer establish whether that relative is in fact “disabled” within the meaning of the DDA? Only time will tell how this will operate in practice.
Associative discrimination is already prohibited on grounds of race, sexual orientation and religion or belief. However, the wording of the relevant legislation prohibiting discrimination on grounds of sex and age is similar to that of the DDA. Therefore the same principles are likely to apply to discrimination on those grounds, for example where someone is discriminated against on grounds of their partner’s age.
Public sector employers should now review their flexible working and equal opportunities policies, making any necessary amendments to ensure that discrimination by association is covered, and provide employees with appropriate training. We would suggest that private sector employers await the decision of the Employment Tribunal before deciding whether to amend their policies. However, given the relatively high risk that the Employment Tribunal will find that the DDA can be interpreted so as to prohibit discrimination by association, it would be prudent for employers to consider each individual situation that arises so as to ensure so far as possible that discrimination by association does not occur.