Carers for disabled people could be protected by discrimination law

One of the Advocates General to the European Court of Justice (ECJ) has produced guidance advising the ECJ to protect Sharon Coleman, a woman who claims she lost her job because she sought time off work to care for her disabled son.

Coleman took her employer, London's Attridge Law, to court claiming she was harassed out of her job. The South London Employment Tribunal asked the ECJ to rule on whether the EU's Equal Treatment Framework Directive protects people associated with the disabled, as well as disabled people themselves.

Some of the laws implementing the Directive in the UK do protect against discrimination by association, for example those dealing with race and sexuality. The Disability Discrimination Act (DDA) does not, though. If the ECJ backs the Advocate General's opinion, which it does in around 80% of cases, the DDA may have to be changed.

The case would be sent back to the tribunal which would have to attempt to read the DDA in line with the ECJ's intentions, which in the opinion of the Advocate General should be that protection is given on the grounds of disability, not specifically on the grounds of the employee's disability.

If it could not, the law will have to change, according to Catherine Barker, an employment law specialist at Pinsent Masons, the law firm behind OUT-LAW.COM.

"Looking at the DDA, I think it would be very hard to give it a purposive meaning in the direction of the Directive," said Barker. "It talks about protections for 'a disabled person' and behaviour related to 'the disabled person'. It is difficult to see how that could be reconciled with the opinion."

Barker said, though, that public sector workers would not even have to wait for the law to be changed. They can take advantage of EU law changes directly, so would be protected as soon as the ECJ ruled in favour of the Advocate General's opinion, if that is what it does do.

Any ruling following this opinion could have a significant effect on the way that businesses treat staff. They will have to be far more proactive about allowing flexible working requests in order to enable carers to carry out their duties outside the workplace, said Barker.

"This is going to have potentially huge implications for employers who will need to be sensitive to the needs of those with caring responsibilities," she said. "They should be sensitive to all requests for flexible working and ensure that people aren't given the worst jobs or made to feel less valuable simply because they have to leave at a certain time of day. You can't have a culture where one size fits all."

Any ruling could affect large numbers of people. Carers UK represents those who look after disabled people and estimates that the six million carers in the UK today will grow in number to nine million over the next 30 years.

Coleman, a legal secretary, gave birth to a son in 2002 who is disabled, and for whom she is the primary carer. She accepted voluntary redundancy in 2005 and filed a claim for constructive dismissal later that year.

She claimed that she was treated less favourably than people with non-disabled children, that she was barred from taking her old job back when she returned from maternity leave and that she was not allowed the same flexible working arrangements as colleagues with non-disabled children.

Coleman said that her employers called her 'lazy' when she sought time off work to care for her son and said that she was using her 'fucking child' to manipulate her working conditions.

Though the DDA does not give protection to those associated with people with disabilities, Coleman argued that the Act should be read in conjunction with the Equal Treatment Framework Directive, and should be read as affording that protection.

Advocate General Miguel Poiares Maduro agreed. "The four questions referred to the Court by the Employment Tribunal boil down to a single issue of law: does the Directive protect non-disabled people who, in the context of their employment, suffer direct discrimination and/or harassment because they are associated with a disabled person?," he wrote in his opinion.

"Directly targeting a person who has a particular characteristic is not the only way of discriminating against him or her; there are also other, more subtle and less obvious ways of doing so," he wrote. "One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they, too, affect the persons belonging to suspect classifications."

"It is clear that had the claimant been disabled herself the Directive would have been applicable," he ruled. "In the present case, though, the allegation is that it was the disability of the claimant’s son which triggered the discriminatory treatment. Thus, the person who is disabled and the person who is the obvious victim or the object of the discriminatory act are not the same. Does this render the Directive inapplicable? Given my analysis up to this point, I think it does not."

"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," he concluded. "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."