Disability discrimination in perspectiive

EBR Attridge Law LLP and another v Coleman (No.2) [2010] IRLR 10 EAT may prove to be a constitutional landmark when it comes to the interplay between domestic and European law. The EAT has “interpreted” the DDA in a way that is consistent with the European Court of Justice (ECJ) ruling in Coleman v Attridge Law and another [2008] IRLR 722 ECJ, and held that Ms Coleman can pursue a disability discrimination claim based on the allegation that the employer treated her less favourably because of her son’s disability.

In doing so, the EAT has gone further than any other case I can find in distorting the meaning of the UK legislation to meet the requirements of EU law – not just in employment, but in any other jurisdiction.

The idea that a UK court should attempt to give effect to European law in the way in which it interprets domestic legislation is not new. To date, however, the courts have carried out this function only where there is an ambiguity in the domestic legislation at issue. But, in Coleman, the EAT has adopted an interpretation that is in clear contradiction of the words of the Act, which specifically provides – in numerous places – that a disability discrimination claim is open only to those who are themselves disabled.

Radical approach

To appreciate how radical this approach is, we only need to look at the recent judicial review of the Sex Discrimination Act 1975. In Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327 HC, one of the issues was the statutory definition of sexual harassment, which required the unwanted conduct in question to be “on the grounds of sex”.

The Equal Opportunities Commission (now the Equality and Human Rights Commission) argued that this was narrower than the wording used in the revised Equal Treatment Directive (2002/73/EC), which spoke of conduct “related to” sex. In ruling that the legislation had to be changed, the High Court was extremely doubtful that it would be possible to “read down” the wording in the directive and make it fit with the wording of the Act. The EAT in Coleman was plagued with no such doubts as to the limits of the rules of interpretation.

Much of the EAT’s reasoning is based on the fact that the House of Lords has taken a highly activist role in interpreting UK law in line with the European Convention on Human Rights. However, Parliament passed the Human Rights Act 1998, which specifically provides for laws to be interpreted in line with the convention. The requirement for UK law to be interpreted in line with European directives comes, not from Parliament, but from the ECJ itself in Marleasing SA v La Comercial Internacional de Alimentacion SA Case C-106/89 ECJ – and has simply been accepted by the UK courts.

It has always been understood that there are limits to how far the UK courts will go. However, in Coleman, the EAT has stepped way over the line between mere interpretation and legislation by judiciary.

Its approach may be in keeping with the spirit of the DDA, but it is also in direct contradiction to its actual words.

There may be nothing wrong with that: indeed, in many ways, the EAT’s approach is an elegant solution to the problem. The ECJ’s decision clearly meant that the Act was inconsistent with the Equal Treatment Framework Directive (2000/78/EC) and would have to be changed.

The Equality Bill currently going through parliament addresses the issue by defining direct discrimination as discrimination “because of” a protected characteristic, without any requirement for it to be the claimant’s characteristic that is at issue. However, the Bill is not in force yet, and is unlikely to come into force before autumn 2010 at the earliest.

Serious hurdles

If the EAT had taken the more conservative view and held that the Act could not be interpreted in a way that complied with the directive, claimants alleging discrimination by association would face some serious hurdles. In the public sector, they might be able to claim that the directive is sufficiently precise to have “direct effect”, which means that individuals employed by an “emanation of the state” can bring a claim based on the directive even though it has not been fully implemented in domestic legislation.

However, this approach is not open to employees in the private sector. Instead, they would have to sue the state directly for the damages flowing from its failure to implement European law – known as a Francovich action, following the ECJ decision in Francovich v Italian Republic [1992] IRLR 84 ECJ.

Neither approach is as effective as simply allowing the UK courts to take serious liberties with the normal rules of statutory interpretation, and add words into a statute if that is what is required to make it comply with European law. Constitutional purists will, however, not approve.

Facts of the case

Ms Coleman was employed as a legal secretary by EBR Attridge Law LLP, a firm of solicitors. She is the principal carer for her disabled son. In 2005, Coleman resigned and complained of unfair constructive dismissal and unlawful disability discrimination to an employment tribunal. Her case was that she had resigned in response to her employer’s alleged discrimination against her on account of her son’s disability. The tribunal referred the question of whether or not associative discrimination contravenes the Equal Treatment Framework Directive to the ECJ.

The ECJ acknowledged that the directive makes no express reference to associative discrimination, and that its specific provisions appear to be directed only at cases where the claimant is disabled. However, it held that the directive seeks to combat all forms of discrimination on the grounds of disability and that its objectives and effectiveness would be undermined if a person subject to discrimination on the grounds of the disability of another person were excluded from protection. The directive should not be interpreted as applying only to disabled people.

The ECJ ruling that associative discrimination contravenes the prohibition of direct discrimination by the Equal Treatment Framework Directive made it clear that protection against direct discrimination and harassment on the grounds of disability is not limited to individuals who are themselves disabled.

The Disability Discrimination Act 1995, which makes no express reference to associative discrimination, must be interpreted to give effect to the directive so far as possible. It is not impossible to add words to the provisions of the Act so as to cover associative discrimination: the legislation contains no contrary indication, and this would not be inconsistent with the scheme of the Act or its central principle, which is to proscribe discrimination “on the ground of disability”.

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