In a landmark decision, the European Court of Justice (ECJ) has ruled that, in relation to direct disability discrimination and harassment, the European Equal Treatment Framework Directive (Framework Directive) protects against "associative discrimination" (in other words, discrimination against a non-disabled person on grounds of his/her association with a disabled person). (Coleman -v- Attridge Law and Steve Law)
Mrs Coleman brought Tribunal proceedings, alleging that she was directly discriminated against and harassed at work on grounds of her son's disability. She claimed that she was treated less favourably than other employees (who were parents of non-disabled children), because she was the primary carer of a disabled child. She also claimed that this treatment caused her to stop working for her former employer.
In this case, the preliminary issue for the Tribunal to determine was whether Ms Coleman was entitled to bring a disability discrimination claim based on her "association with" a disabled person rather than any disability of her own.
The Tribunal referred to the ECJ the question of whether the Framework Directive's provisions on disability covered "associative discrimination". The Employment Appeal Tribunal (EAT) upheld the Tribunal's decision to refer the issue to the ECJ and indicated that the wording of Disability Discrimination Act 1995 could be capable of interpretation to prevent associative discrimination, in line with the Courts' responsibility to ensure that the Framework Directive is fully effective.
The ECJ concluded that the Framework Directive must be interpreted as meaning that prohibition of direct discrimination (and harassment) is not limited only to people who are disabled themselves.
It decided that employees are also protected against direct discrimination (and harassment) by reason of their being the primary carer of a disabled person.
Ms Coleman's case will now be referred back to the Employment Tribunal for a decision.
The Tribunal will need to decide whether it is able to interpret the Disability Discrimination Act 1995 in line with the Framework Directive. If not, the Government will need to amend the Disability Discrimination Act 1995 in light of the ECJ decision.
In any event, it is now clear that carers will be afforded disability discrimination protection if they are treated less favourably on grounds of the disability of the person they have primary care of.
Importantly, as the Framework Directive applies to all forms of discrimination, the ECJ's decision should also have the effect of protecting against "associative discrimination" on other prohibited grounds. So in future, employees will be able to complain about discriminatory treatment based on the age, sexual orientation or religion/belief of third parties if they are sufficiently closely linked with the discrimination.