The Labour Court has held that an employee without a disability cannot claim disability discrimination for being treated less favourably than a person with a disability.

In Navan Education Centre t/a National Behaviour Support Service v Brendan Lydon, Mr Lydon and two other employees had to compete for a post when Navan Education Centre (NEC) restructured and reduced three posts to two. One candidate in the process fell seriously ill and was unable to interview for one of the new positions. On the basis of the employee's illness, NEC did not require her to sit the interview and appointed her to one of the vacant positions. Mr Lydon contended that this went beyond reasonable accommodation, and the reduction of his chances from 66% (when there were two roles for three candidates) to 50% (when there was one role for two candidates) amounted to discrimination on the disability ground.

DECISION OF THE WRC

When the claim went before the WRC, the Adjudication Officer held that Mr Lydon could bring a disability discrimination claim notwithstanding the fact that he did not have a disability. However, the Adjudication Officer found that an employer has wide latitude in providing special treatment or facilities to an employee with a disability, and Mr Lydon's complaint failed. He appealed the decision to the Labour Court.

ARGUMENTS BEFORE THE LABOUR COURT

Mr Lydon referred to Kalanke v Freie Hansestadt Bremen in which the Court of Justice of the European Union held that, in a promotion process where male and female candidates were equally qualified, the automatic priority of women breached the principle of equal treatment, even when applied only to sectors where women were underrepresented. Mr Lydon contended that if a male candidate can be discriminated against because of less favourable treatment due to positive action in favour of an underrepresented gender, then he could be discriminated against because of the positive action of accommodations provided to someone with a disability.

NEC argued that the discriminatory grounds in the Employment Equality Acts operate differently. Both men and women are genders, and on that basis both can bring a discrimination claim on the gender ground. This is not the same as other discriminatory grounds, such as being a member of the Traveller community or having a disability, where the absence of the relevant protected characteristic cannot of itself be a discriminatory ground.

NEC referred to Coleman v Attridge Law and noted that the Equal Treatment Directive was intended to protect people who "although not themselves disabled", were discriminated against because of their association with a person with a disability. It was argued that this could be distinguished from Mr Lydon's case as he had not suffered discrimination by association.

NEC stated that in order to bring a claim of disability discrimination, Mr Lydon must have a disability, must have one imputed to him or must be discriminated against because of his association with someone who has a disability. None of these situations arose.

DECISION OF THE LABOUR COURT

The Labour Court relied on section 6(1) of the Employment Equality Acts, which states that discrimination is less favourable treatment based on a discriminatory ground that exists, existed, may exist in the future, is imputed to the person, or arises by that person's association with a person who

falls within one of the discriminatory grounds. The Labour Court decided, as a preliminary issue, that Mr Lydon was not entitled to bring a claim in circumstances where he had satisfied none of the criteria set out in section 6(1) of the Acts.

This case somewhat clarifies the position on discrimination by association and emphasises the wide discretion that is given to employers when providing reasonable accommodation for employees with disabilities.