The question of whether EU law protects employees who are associated with disabled people – such as carers – from discrimination, was put to the European Court of Justice recently, when the Advocate General gave his opinion on the case of Coleman v Attridge Law.
‘Carers may gain right to flexible working’, the headlines screamed. Actually, they won’t – not on the back of this case anyway, and not under current EU law.
Although one feature of Sharon Coleman’s case is that she was refused flexible working arrangements, it is not this refusal in itself that she is complaining about. It is the refusal to allow her to work flexibly in the context of other staff being permitted to do so, that has given rise to the allegation of discrimination.
If Attridge Law had not permitted anyone to work flexibly, then Coleman would have no cause for complaint. Her argument is that she was treated less favourably than other staff – parents of non-disabled children – who were given flexibility.
The Advocate General held that the EU Directive extends to all people who suffer discrimination on the grounds of disability – whether the disability is their own or someone else’s. UK law, however, only outlaws discrimination against a worker on the grounds of the disabled person’s disability.
So a win in Europe (which Coleman does not yet have, as it will take around three months for the judges to give the final verdict) will not give the UK’s often cited six million carers the right to work flexibly. What it will mean, is that parents/carers of disabled people will be protected from direct discrimination and harassment on the grounds of their connection with a disabled person. Comments such as those allegedly made to Coleman -“Your f***ing child is always f***ing sick” – will therefore be unlawful.
Likewise, it will be unlawful, for example, to threaten disciplinary action over lateness because of a child’s ill health, when other staff are allowed to come in late with no such threat.
It is hard to imagine that many employers could object to a change in the law of this kind, which would simply provide a level playing field for carers. In fact, outlawing ‘discrimination by association’ under the Disability Discrimination Act (and also, by implication, under age legislation, which uses the same problematic wording, on the grounds of that person’s age) would provide much-needed consistency across discrimination law in the UK.
At present, it is well established that discrimination on grounds of race, sexual orientation and religion includes discrimination by association. The mother of a mixed-race child, a gay child, or a child with a different religious belief could not be treated less favourably by employers because of any of these characteristics of her child. Why should it be any different for the mother of a disabled child?
A consistent approach across all areas of discrimination law would make it much easier to draft sensible HR policies and train staff. Anything else just makes the law – and those trying to explain it to staff – seem an ass.
So ignore all the hysteria about the cost to industry of supposedly sweeping new rights for carers, and instead welcome a step towards a victory for common sense, and the closure of a gap in the UK’s legislation that should never have existed in the first place.
Lucy McLynn is solicitor for Sharon Coleman (with the backing of the Equality & Human Rights Commission).
- It is arguing that people, (eg carers), associated with disabled people, have the right not to be discriminated against because of this association.
- It is not seeking a standalone right to flexible working, or any other “reasonable adjustment” for carers.
- The Advocate General’s opinion, if followed, will protect carers of disabled people from direct discrimination and harassment.
- The same principles will have to apply to age discrimination, eg carers of elderly relatives.