The European Court of Justice (“ECJ”) has followed the Advocate General’s landmark opinion in Coleman v Attridge Law (and Another) that associative discrimination, in the context of direct disability discrimination and harassment, is prohibited by the EC Equal Treatment Framework Directive. “Associative discrimination”, in this regard, can be described as less favourable treatment of a non-disabled person by the employer, on grounds of his or her association with a disabled person.
Sharon Coleman, a working mother, provided primary care for her son who suffers from a rare lung disease and is disabled. In 2005, Ms Coleman resigned from her position as a legal secretary with Attridge Law. She presented a claim in an Employment Tribunal for direct disability discrimination, disability related discrimination, and harassment and victimisation under the Disability Discrimination Act 1995 ("DDA"). The focus of her case is that she had suffered detrimental treatment due to her association with her disabled son.
Ms Coleman’s claim includes allegations that she was unfairly refused flexible working arrangements, had been called "lazy" when she wanted to take time off to care for her son and was accused of using her child to manipulate her working conditions.
Though Ms Coleman is not disabled, she sought to rely upon the DDA which, on a literal reading, only provides protection for persons who meet the statutory definition of "disability". She argued however that this is contrary to fundamental principles of European, anti-discrimination law, as set out in the Equal Treatment Framework Directive, which prohibits discrimination “on grounds of” disability.
Her case was referred to the ECJ for a ruling on the scope of the Directive. The ECJ agreed with Ms Coleman’s case.
It held that associative discrimination, such as that allegedly suffered by Ms Coleman, is prohibited by the Framework Directive, which seeks to prevent all forms of discrimination on grounds of disability.
Effect on employers
It is anticipated that this ruling will have a far reaching effect on employers and be of immediate benefit to workers within the UK who care for the disabled.
The UK’s Employment Appeal Tribunal has already indicated that it believes that the DDA is capable of a purposive interpretation to include associative discrimination, though exactly how this will be addressed remains to be decided.
It is clear however that the ECJ’s decision will support claims being brought by employees for associative discrimination and is likely to provide carers, in appropriate circumstances, with a new cause of action against their employer. As a protective measure, employers should carefully review their practices, policies and procedures to ensure that they do not operate in a way that could trigger claims of associative disability discrimination.
The case now returns to the original Employment Tribunal for a decision.
Coleman v Attridge Law and Law (ET/2303745/2005)