The European Court of Justice has ruled that discrimination against a worker on the grounds of her son's disability contravenes European law.
In the case of Coleman v Attridge Law, which may have significant ramifications, the ECJ has ruled that direct discrimination and harassment against a worker on the grounds of her association with a disabled person is unlawful under the Equal Treatment Framework Directive. That Directive prohibits discrimination in the fields of disability, sexual orientation, age and religion & belief, and the Disability Discrimination Act 1995 (DDA) (as amended) is intended to implement it in the UK as regards the issue of disability discrimination.
Mrs Coleman worked for Attridge Law as a legal secretary from 2001 to 2005. After leaving her employment by way of voluntary redundancy, Mrs Coleman brought employment tribunal proceedings alleging unfair dismissal and discrimination on the grounds that she was the primary carer of a disabled child. Mrs Coleman alleges that, in contrast to how workers with non-disabled children were treated, her employer refused to allow her to return to her existing job following maternity leave, denied her flexible working arrangements, described her as 'lazy' when she requested time off work, threatened her with dismissal on occasional instances of lateness and made abusive comments about her and her son.
The employment tribunal referred the matter to the ECJ for a ruling on whether the Equal Treatment Framework Directive protects only those who are themselves disabled or, if not, whether it also protects those discriminated on grounds of their association with a disabled person.
The ECJ has ruled in Mrs Coleman's favour and held that the Equal Treatment Framework Directive " ... must be interpreted as meaning that the prohibition of direct discrimination laid down by [the relevant] provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination ..."
Similarly, as regards harassment, the ECJ held that the Directive "must be interpreted as meaning that the prohibition of harassment laid down by those provisions is not limited only to people who are themselves disabled. Where it is established that the unwanted conduct amounting to harassment which is suffered by an employee who is not himself disabled is related to the disability of his child, whose care is provided primarily by that employee, such conduct is contrary to the prohibition of harassment .... "
The Coleman case will now be referred back to the employment tribunal for a determination of whether the DDA can be interpreted in such a way as to give effect to the ECJ's ruling on the correct interpretation of the Directive. In our view, it is unlikely that the employment tribunal can purposefully interpret the existing DDA wording so as to give effect to the ECJ's ruling. In short, the current wording of the DDA prohibits discrimination and harassment against a disabled person employed by the employer on the ground of/for a reason relating to the disabled person's disability, with 'disabled person' being defined as someone who has a disability (and not also, for instance, someone who has responsibility for the care of another person with a disability). It may therefore be that the DDA will need to be amended so as to give effect to the ECJ's decision (although public body employers will already be directly subject to the decision).
Clearly, the ECJ decision will have a significant impact upon those areas of discrimination and harassment law governed by the Equal Treatment Framework Directive. Employers, particularly public bodies, are advised to factor in the potential for discrimination claims on the grounds of a worker's association with a disabled person (and possibly association with another person's sexual orientation, age, religion or belief). Flexible working applications brought by workers in order to facilitate care for a disabled dependent appears to be a particularly likely area for this issue to arise.