An employment tribunal has held, in the case of Coleman v Attridge Law, that the Disability Discrimination Act (DDA) protects non-disabled employees who are discriminated against or harassed on the grounds of someone else's disability.
This case has been highly publicised and readers will be aware of the facts. Ms Coleman was a legal secretary and also the primary carer for her disabled son. She brought tribunal proceedings against her employer, alleging discrimination and harassment based on her son's disability.
In July 2008, the European Court of Justice ruled that the EU Directive protects an employee from discrimination on the grounds of the disability of someone with whom they are associated. The tribunal, therefore, had to determine whether the DDA could be interpreted to give effect to the ECJ's ruling or whether it would need to be amended.
On a natural reading of the relevant section of the DDA, Ms Coleman's claim would have failed. However the tribunal concluded that it could interpret the DDA to cover associative discrimination by reading references to a disabled person as if they included the words "or a person associated with a disabled person". Miss Coleman's claim now proceeds to a full hearing to determine whether her employer has discriminated against her.
Impact on employers Once the ECJ had determined that the Directive did cover associative discrimination, it was always likely that the tribunal would reach this conclusion. There is no guidance on how close an association is required for the protection to apply but carers will be the most likely group of individuals to benefit.
Employers should review their equal opportunities and flexible working policies to reflect this decision. Care should be taken in recruitment and in dealing with requests for flexible working or for time off work, if employers are to avoid claims that employees have been unfairly treated on the grounds of their responsibilities for caring for disabled people.
It should be noted that UK law currently prohibits associative discrimination on the grounds of someone else's race, sexual orientation or religion or belief. However there is no such protection under UK legislation in relation to discrimination on the grounds of sex, marital status, age or gender reassignment. The Government acknowledges that it will need to review the position following the ECJ's decision in this claim and it may well address these discrepancies in the forthcoming Equality Bill.