Advocate General's opinion (pending a final decision of the ECJ) is that the EC Equal Treatment Directive ('the Directive') prohibits discrimination against an individual who is associated with a disabled person regardless of whether that individual is disabled. The case concerned a legal secretary who claimed she was discriminated against on the grounds of her son's disability.
(Advocate General's opinion in the case of Coleman v Attridge Law, 31 January 2008 (reference from South London Employment Tribunal)).
- Only the ECJ's decision will be binding and the ECJ does not always agree with the Advocate General's opinion. The ECJ is not expected to rule on this matter until later this year.
- If the ECJ agrees with the Advocate General then it is likely that either:
- the employment tribunal shall interpret the Disability Discrimination Act 1995 (DDA) in line with the above decision; or
- the government will amend the DDA.
- Either way, employers will need to be careful not to discriminate against workers on the basis that they are associated with a disabled person, such as carers and family/friends of disabled persons.
- It is also worth noting that in the Advocate General's opinion the Directive also prohibits discrimination by association in respect of other forms of discrimination. Therefore, we may well see similar challenges in due course in this respect and/or amendments to other discrimination legislation.
Mrs Coleman, the Claimant, was employed as a legal secretary for Attridge Law, the Respondent.
The Claimant was not disabled herself but the primary carer for her disabled son. The Claimant brought claims under the DDA arguing that she had been less favourably than employees with non-disabled children. Among the examples of the discriminatory treatment the Claimant alleged she suffered was that the Respondent
- refused to allow her to return to her existing job after coming back from maternity leave;
- called her ‘lazy’ when she sought to take time off to care for her son; and
- was less flexible in relation to her working arrangements than in respect of her colleagues with non-disabled children.
The DDA, if read literally, only prohibits discrimination against people who themselves have a disability. The Claimant argued that this did not properly reflect the Directive, as this prevents discrimination not only against disabled persons but also against individuals who are victims of discrimination because they are associated with a disabled person.
The employment tribunal referred the case to the ECJ for a preliminary ruling.
The Advocate General (a senior adviser to the ECJ) agreed with the Claimant. In his view, the Directive prohibits an employer from treating staff less well than others for any of the reasons set out in anti-discrimination legislation. This is regardless of whether it is on account of their own characteristics or another's. In his opinion it is therefore not necessary for someone to have been mistreated on account of their disability to seek the protection of the Directive. It is enough for the individual to have been mistreated on the grounds of another's disability.