Indirect disability discrimination ruling has major implications for HR

The ruling in the recent Coleman v Attridge Law case has major repercussions for HR directors and managers who should amend some key policies now, writes Ed Williams, employment law barrister at Cloisters.

The European Court of Justice recently ruled that anti-discrimination laws that protect disabled people in the workplace also cover their carers as well. The decision will prevent an employer discriminating against an employee on the basis of another person’s disability.

The magnitude of the ruling may not be immediately obvious. Associative discrimination on grounds of sexual orientation, religion and on racial grounds is, after all, already unlawful in the UK.

What may cause a collective shudder to ripple across the HR community is when one looks at the numbers that will be affected by this decision. Almost overnight, the 2.6 million workers which the government estimates are also unpaid carers, may now be able to claim disability discrimination under the EU’s Equal Treatment Framework Directive. And with any claim for compensation uncapped, the result could be very costly for discriminating employers.

For those hoping that the word ‘almost’ signifies some kind of partial reprieve or a welcome delay in the implementation of the ruling, this isn’t the case – or at least not entirely so.

Public sector employers need to comply immediately. Teachers, nurses, local government workers etc can, with immediate effect, rely directly on the directive and the Coleman judgment. Expect claims to be lodged in the next few weeks and months.

For those in the private sector, however, it may take slightly longer to make a successful claim. For the decision to apply to private sector workers, current disability legislation (the Disability Discrimination Act 1995) needs to be reinterpreted by the courts or even amended by Parliament.

But it shouldn’t be forgotten that this case started in the private sector. The claimant, Sharon Coleman, worked for law firm Attridge Law. And she, and others like her, could take the government to court for failure to implement the directive properly.

In the circumstances, it would be unlikely that the government would wait too long before taking action to ensure UK legislation complies. The forthcoming Single Equality Act may well prove to be an ideal mechanism for such amendments.

Therefore all employers – in the public and private sector – would do well to revisit their policies and procedures in light of this decision. Particular attention should be given to ensuring that equal opportunity, anti-harassment, anti-discrimination and absence policies comply, and that they have a clear understanding of who may be affected by this change in the law. This should be done sooner rather than later.

Employers should also consider how their flexible working policies will be implemented. Parents of young and disabled children and carers of adults already have a right to request flexible working, but this ruling now gives a carers’ challenge against an employers’ decision far more teeth.

Employers should also consider their equal opportunities policies in the context of associative age discrimination, which is now covered as a result of this ruling, and ensure compliance with existing laws against associative discrimination in terms of sexual orientation, religion and on racial grounds.

But, as with all these things, an updated equal opportunities or flexible working policy will mean nothing if poorly implemented. Reinforcing the message to staff about the costly implications of inappropriate tea-room banter or watercooler gossip has never been more important. It is true. Careless talk costs.

Key points

  • A person who is not protected on grounds of disability, age, sexual orientation, race and religion can be discriminated against on these grounds if they are closely associated to a person who is so protected.

  • Associative discrimination on grounds of sexual orientation, race and religion is unlawful in the private and public sectors already.

  • Associative discrimination on grounds of disability and age is now unlawful in the public sector. It will be unlawful in the private sector in the future.

  • Employers should take immediate steps to ensure their equal opportunity policies reflect this clarification of European Law.

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