Sharon Coleman left her job at Attridge Law where she was a
legal secretary in 2004, two years after giving birth to a disabled
son. She was her son's primary carer.
Over a year later she sued for unfair constructive dismissal,
claiming that she received unfavourable treatment because of her
son's disability.
"The prohibition of direct discrimination … is not limited only
to people who are themselves disabled," said the ECJ's ruling.
"Where an employer treats an employee who is not himself disabled
less favourably than another employee is, has been or would be
treated in a comparable situation, and it is established that the
less favourable treatment of that employee is based on the
disability of his child, whose care is provided primarily by that
employee, such treatment is contrary to the prohibition of direct
discrimination."
UK law does not allow for people to claim disability
discrimination by association, but the ECJ has ruled that the EU's
Equal Treatment Framework Directive requires that it does.
Some UK equality legislation does protect people against
discrimination by association, such as the laws banning
discrimination on the grounds of race and sexuality. The Disability
Discrimination Act (DDA), though, does not give that protection.
That law may now have to be changed.
The case will be sent back to the South London Employment
Tribunal which asked for the ECJ's help. It will have to try to
interpret UK law in a way that complies with the ECJ ruling. If
that is not possible, the law will have to be changed.
"The DDA must now be interpreted in a way which gives effect to
the purpose of the Directive by affording protection to those who
suffer direct discrimination or harassment as a result of their
association with a disabled person, if it is possible to do so
without distorting its meaning," said Louise Donaldson, an
employment lawyer with Pinsent Masons, the law firm behind
OUT-LAW.COM.
"The Employment Tribunal in this case has already indicated that
it considers that it is possible to do this by adding in some extra
wording and the EAT agreed with this view. It therefore seems that
employment tribunals will have to construe the DDA as covering
associative discrimination without waiting for a change in the
law," she said.
The ECJ looked at the Equal Treatment Framework Directive and
found that its protections were broader than those in UK law.
"The Court observes that the directive defines the principle of
equal treatment as meaning that there is to be no direct or
indirect discrimination whatsoever on the grounds … of disability,
and that it applies to all persons in relation to employment and
working conditions, including dismissals and pay," said an ECJ
statement.
"The Court notes that, whilst the directive includes certain
provisions designed to accommodate specifically the needs of
disabled people, that does not lead to the conclusion that the
principle of equal treatment enshrined in that directive must be
interpreted … as prohibiting only direct discrimination on grounds
of disability and relating exclusively to disabled people," it
said.
"According to the Court, the directive, the purpose of which is
to combat all forms of discrimination, applies not to a particular
category of person but by reference to the nature of the
discrimination," said the statement. "An interpretation limiting
its application only to people who are themselves disabled is
liable to deprive the directive of an important element of its
effectiveness and to reduce the protection which it is intended to
guarantee."
Coleman had claimed in her case that her employer had not
allowed her to take her old job back when she returned to work and
that she was not given the same working flexibilities that other
workers were allowed.
Earlier this year one of the ECJ's advocates general, Miguel
Poiares Maduro, backed Coleman's case.
"One can be a victim of unlawful discrimination on the ground of
disability under the Directive without being disabled oneself; what
is important is that that disability – in this case the disability
of Ms Coleman’s son – was used as a reason to treat her less well,"
said Maduro. "If Ms Coleman can prove that she was treated less
favourably because of her son’s disability she should be able to
rely on the Directive."
The ruling could change the way that UK employers consider
requests for flexible working. They may have to offer more
flexibility to employees who care for disabled dependents. Carers
UK estimates that there are six million carers in the UK.
"A carer of a disabled person may have a much stronger weapon in
terms of being able to bring a disability discrimination claim if
their request to work flexibly is refused," said Donaldson.
"Although flexible working is an obvious area where associative
discrimination comes into play, any less favourable treatment which
is shown to be by reason of a person's association with a disabled
person will give grounds for a disability discrimination
claim."
