Disability Discrimination Act can extend to carers, rules ECJ

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."