In the case of Coleman v Attridge Law, the Advocate General has handed down his opinion that the Equal Treatment Framework Directive covers discrimination against a non–disabled person such as a carer on grounds of their association with a disabled person (so-called associative discrimination).
Ms Coleman worked for a firm of London solicitors and was also the primary carer for her disabled son. In employment tribunal proceedings against her former employer, she alleged that she had suffered less favourable treatment and harassment based upon her son's disability and sought to bring claims of disability discrimination. The tribunal agreed with her that the Framework Directive was intended to prohibit such associative discrimination but that on a literal interpretation of the UK legislation (the Disability Discrimination Act 1995 ("DDA")) such discrimination was not covered. The EAT referred the question of whether the Framework Directive required the DDA to be read purposively to protect her from associative discrimination.
If the ECJ follows the Advocate General's opinion the case will return to the EAT which will have to decide whether to achieve the purpose of the Directive by implying additional wording into the DDA. Such a decision would have a substantial impact on employers and not just in relation to disability. The Advocate General's opinion suggested that the same principle will apply to any of the prohibited grounds listed in the Directive, namely religion or belief, disability, age or sexual orientation.
Impact on employers
The practical effect of this is that employers will have to tighten up their discrimination and flexible working policies. In particular employers will need to take care over recruitment, requests for flexible working and time off work. It is likely to be carers who will benefit most. Such a ruling would open the way to claims if they were treated less favourably on grounds of their caring responsibilities.