UK discrimination law protects employees from discrimination on the grounds of certain specified characteristics (race, gender, age, sexual orientation, etc). Where the individual who suffers less favourable treatment does not herself have the protected characteristic, the position can become complicated. Can an individual claim to be the victim of unlawful discrimination because he or she is associated with another person who has the protected characteristic? The answer to the question may vary depending on the type of discrimination.
In the context of race, religion or belief and sexual orientation discrimination it is already accepted that the legislative protection does extend to associated individuals. Coleman v Attridge Law (Case C-303/06) considered the position in respect of disability discrimination.
The case concerned a legal secretary who has a disabled son. Her son, born in 2002, suffers from a respiratory condition requiring specialised care and his mother is his primary carer. She worked for a law firm and claims to have suffered harassment and discrimination because of her son’s condition. She claims she was not allowed the flexibility afforded to other working parents, that her employer called her “lazy” and accused her of trying to manipulate her working conditions. She alleges that she was subjected to abusive and insulting comments about her and her child.
She brought a claim under the Disability Discrimination Act 1995 (DDA).
The relevant provisions of the DDA relating to harassment and direct discrimination refer only to “disabled persons”. On a literal interpretation, those provisions would not therefore protect an associated individual (that is, anyone who was not a “disabled person”).
However, UK law should implement EU law in this area and the wording of the EU Equal Treatment Directive 2000/78 is broader and arguably does protect associated individuals. It prohibits discrimination “on the grounds of” disability. It does not specify whose “disability” this should be. The tribunal referred the issue to the European Court of Justice (ECJ). It asked whether the Framework Directive protects employees who, though they are not themselves disabled, are treated less favourably or harassed on the ground of their association with a person who is disabled.
In a decision published on 17 July 2008, the ECJ agreed with the Advocate General‘s opinion that, under the directive, direct discrimination and harassment by association are unlawful.
As the UK tribunal had made the reference on a preliminary point, no facts had yet been determined in the claim and the ECJ proceeded on the assumption that Mrs Coleman’s version of events was correct. It held that, where an employee is the primary carer of his disabled child and suffers direct discrimination or harassment based on the disability of that child, that conduct will be a breach of the Framework Directive.
Where discrimination occurs on grounds of disability, the protection of the legislation is not limited only to disabled individuals themselves. The ECJ considered that any such limit would deprive the directive of an element of its effectiveness and reduce the level of protection it is intended to provide.
One door closes … another door opens?
The scope for disabled persons to bring claims for disability-related discrimination has been dramatically curtailed by the recent decision of the House of Lords in London Borough of Lewisham v Malcolm. Although the decision of the ECJ in Coleman appears to expand the scope of disability discrimination legislation in another area, its significance should not be overstated.
It is worth reiterating that, to succeed in a claim, an individual would need to show harassment or less favourable treatment on grounds of another’s disability. Unless direct discrimination by association is interpreted very broadly by the tribunals, the occasions where such a claim might succeed are, in our view, likely to be fairly limited.
Direct discrimination and harassment only
The reference to the ECJ was confined to harassment and direct (not indirect, disability-related) discrimination. It was not argued that there can be indirect discrimination by association.
If direct discrimination by association is interpreted in the same way as ordinary direct discrimination, an employee would need to show the less favourable treatment arose because of the associated individual’s disability and not because of related matters (such as requesting time off, persistent lateness or even fatigue). The facts of Coleman are perhaps unusual in that it appears that the employer in this case did discriminate against the employee and subjected her to harassment precisely because of the disability.
If it is applied in the same way as ordinary direct discrimination rules, an employee claiming to have suffered less favourable treatment by association should be compared to another employee who is not associated to a disabled person whose relevant circumstances are otherwise the same or not materially different. So, an employee who is the primary carer for a disabled child and who is disciplined for persistent lateness should be compared to another employee who is also persistently late who does not have a disabled child. If that employee would also be disciplined there would be no less favourable treatment and no discrimination. The obligation to make reasonable adjustments does not apply in the context of discrimination by association.
Requests for flexible working
The Coleman decision is likely to be relevant in the context of requests for flexible working arrangements. Let us assume, for example, that an employee who is the primary carer for an elderly disabled parent makes a request for flexible working arrangements that is refused. If the reason for the refusal is the fact that the employee is associated with an individual with a disability, that will now be unlawful discrimination.
If, however, the employer’s reason for refusing (as permitted by the Flexible Working Regulations) is, say, that it would be unable to reorganise work among its existing staff, this is less likely to give rise to a claim. The employee should be compared to other employees who request flexible working arrangements but who do not have disabled relatives.
A note of caution
The ECJ made interesting comments about the burden of proof in this context.
It stated that once an employee “establishes facts from which it may be presumed that there has been direct discrimination, the effective application of the principle of equal treatment then requires that the burden of proof should fall on the respondents, who must prove that there has been no breach of that principle … In that context, the respondents could contest the existence of such a breach by establishing by any legally permissible means, in particular, that the employee’s treatment was justified by objective factors unrelated to any discrimination on grounds of disability and to any association which that employee has with a disabled person”.
So a carer of a disabled child might have a foot in the door if a request for flexible working is refused, when other staff in comparable circumstances were not refused. Although this should not make a material difference as long as the fact that the individual was a carer of a disabled child was not a reason for the less favourable treatment, it suggests that employers should now act with greater caution when it comes to handling such requests.
The next stage
The Coleman case will now return to the UK for the Employment Appeal Tribunal to consider whether it is possible to read the current wording of the DDA purposively to comply with the directive. If this is not possible, legislative amendments will be needed.
What should employers do now?
Carers of disabled individuals will now be able to bring claims for disability discrimination where this is the reason for less favourable treatment or harassment. For public sector employers, the ECJ’s decision will have immediate relevance as the directive applies to them directly. Private sector employers must await the domestic decision in Coleman. Although employers need to be alive to the implications of this decision, organisations that already operate effective diversity and equal opportunities policies are unlikely to need to change current practices.
The articles of the Framework Directive considered in Coleman also cover religion or belief, age and sexual orientation and, to the extent it was not already the case, discrimination by association will now exist equally in those areas.