Ms Coleman, who cared for her severely disabled son, brought a claim against her former employers alleging that she had been treated less favourably because of his disability.
She complained that her former employers refused to allow her to return to her existing job after maternity leave, failed to give her the same amount of flexibility as staff with non-disabled children, disciplined her, and dealt with her grievances inadequately.
Coleman also argued that she was criticised for taking time off, and accused of using her son’s disability to her own advantage, which created a hostile working environment.
The employment tribunal, without making any findings of fact, referred Coleman’s case to the European Court of Justice (ECJ) to consider whether discrimination by association with a disabled person (in this case, Coleman’s son) was outlawed by the Equal Treatment Framework Directive (Directive).
If the directive prohibited associative discrimination, a tribunal would need to interpret the Disability Discrimination Act 1995 (DDA) to give effect to the purpose of the directive, and Coleman could proceed with her claim.
The ECJ was asked to consider whether the directive only protected from direct discrimination and harassment people who were themselves disabled, or whether it would protect people who were treated less favourably or harassed on the ground of their association with a disabled person.
The Advocate General has now delivered an opinion on these questions. It is not legally binding, but the ECJ normally follows these recommendations. The Advocate General’s view is that the directive protects people from direct discrimination and harassment by association.
If the ECJ follows the Advocate General’s opinion, the employment tribunal will need to interpret the DDA to provide protection for those associated with disabled people.
- The Advocate General’s opinion is that direct discrimination and harassment on the grounds of association with disabled people is unlawful.
- This is not a legally binding decision, but the ECJ is likely to follow this opinion when it delivers its decision later this year.
What you should do
- Equal opportunities policies may need to be reviewed to expressly refer to discrimination by association.
- Be careful when handling flexible working requests from carers of elderly or disabled people. When refusing a request, you must be satisfied that you have not treated them less favourably than someone whose circumstances are not materially different (such as requesting flexibility for childcare).