The Employment Appeal Tribunal (EAT) has confirmed that non-disabled employees who are treated less favourably or harassed because of their association with a disabled person can bring a claim under the Disability Discrimination Act 1995 (DDA).
This is the latest instalment in the long-running claim by Sheila Coleman against her former employers, EBR Attridge Law LLP (Attridge Law). Following her resignation in March 2005, Coleman, who is not herself disabled but is the principle carer for her disabled son, brought a claim against Attridge Law on the grounds that she had been discriminated against and harassed because of her son’s disability.
The DDA, as originally drafted, only regulates the treatment of people who are themselves disabled. It bans direct discrimination and harassment, but only against a disabled person. Coleman argued that this does not comply with the Equal Treatment Directive (the directive), which seeks to eliminate all discrimination on the grounds of disability. In other words, the directive is concerned with the grounds of the treatment, and not the category of person on the receiving end of the treatment.
In 2006, a tribunal referred Coleman’s case to the European Court of Justice (ECJ). The ECJ confirmed that the directive does cover direct discrimination and harassment by association. The case then returned to the tribunal to decide whether the DDA could be interpreted consistently with the directive so that Coleman could pursue her claim, or if the government needed to change the DDA before she could do that.
The EAT has now confirmed that the DDA should be interpreted as covering employees who are not themselves disabled. The EAT has said that domestic legislation must be interpreted to give effect to obligations under EU law, and that words can be read into legislation to achieve that. That is the case even if the additional words change the meaning of the DDA, as long as the addition is consistent with the general principles of the legislation. The EAT said that the principle of associative discrimination is an extension of the scope of the DDA and “fully in conformity with the aims of the legislation as drafted”.
The effect is that Coleman can now pursue her claims for direct discrimination and harassment based on her association with her disabled son. This, however, is not the end of the saga. She now has to go on to demonstrate that the reason that she was discriminated against and harassed (as she alleges) was because of her son’s disability.
All employers must take note of this important decision as the effect is that any non-disabled employee can now bring a claim of associative direct discrimination and harassment, and they do not have to wait for the law to change before they can do that.
- To give effect to the EU Equal Treatment Directive, the Disability Discrimination Act 1995 must be interpreted as covering discrimination by association with a disabled person.
- A non-disabled employee can now bring a claim for direct discrimination and harassment on grounds of/for a reason related to the disability of another person.
- The duty to make reasonable adjustments does not, however, apply to non-disabled employees.
- As the EU Equal Treatment Directive outlaws other forms of discrimination and not just disability, this decision will also extend associative discrimination to those strands where it is not already covered (for example, age and gender discrimination).
What you should do
- Policies and practices must be updated to reflect this decision and confirm that direct discrimination and harassment due to association with a disabled person (or a person with another protected characteristic) is now prohibited.
- Managers and recruiters must be trained to ensure they do not treat less favourably employees who are associated with people who fall within any protected category of discrimination.