The European Court of Justice (ECJ) has held that the European Equal Treatment Directive (EET Directive) does cover direct discrimination and harassment against an employee on the grounds of their association with a disabled person.
Ms Coleman was a legal secretary and primary carer for her disabled son. On her return from maternity leave she had not been allowed to return to her previous role and had less flexibility in terms of her working hours. Also, she alleged that she had suffered from abusive and insulting comments about both her and her son. All of the allegations were based on her association with her son.
The wording of the Disability Discrimination Act 1995 (DDA) prohibits discrimination “for a reason which relates to the disabled person’s disability”. This link to individual characteristics is different to other discrimination legislation that prohibits discrimination “on the grounds of” the impermissible reason.
The DDA should comply with the EET Directive but Coleman argued that on a literal interpretation there was a conflict between the DDA and the EET Directive, which should be resolved in her favour.
The ECJ agreed and decided that the EET Directive was not just limited to the protection of people who themselves had a disability. All forms of discrimination were protected and a purposive approach should be adopted.
The ECJ referred to the Community Charter of the Fundamental Social Rights of Workers which highlighted “the need to take appropriate action for the social and economic integration of disabled people”. Clearly, the ECJ was of the opinion that associative discrimination could prevent such integration.
In light of this ruling it is clear that the DDA should now be construed in a wider sense. Interestingly, this European ruling comes at the same time as the decision of the House of Lords which provided a narrow interpretation of section 3A(1) of the DDA (see London Borough of Lewisham v Malcolm, page 7).
The Coleman case was referred to the ECJ by the Employment Tribunal, on the basis of the above presumed facts. Now that the ECJ has given guidance on this issue, the case will proceed to a substantive hearing and Coleman’s claims of constructive dismissal and disability discrimination will be determined in the usual way, unless the tribunal considers it cannot interpret the DDA in such a way without further legislative changes.
This case will not just benefit Coleman. The government estimates that 2.6 million employees carry out the role of an unpaid carer along with their job. If they are subjected to detriment on the basis of their association, then they will be protected under UK law.
- Able-bodied people will be protected by the Disability Discrimination Act if they are discriminated against on the grounds of their association with a disabled person (‘associative discrimination’).
- Associative discrimination will also be unlawful in relation to sexual orientation, age, religion and belief, on the basis that the EET Directive covers these areas of discrimination as well as disability.
- Any UK discrimination law that cannot be interpreted in a manner consistent with the Coleman decision may be open to challenge or a public sector employee may seek to directly rely upon the EET Directive itself.
What you should do
- Employers should review any equality policies to check they cover associative discrimination.
- Employers may have to consider requests for flexible working under the reasonable adjustments provisions of the DDA if the request is made by a carer of a disabled person.