The landmark decision of the European Court of Justice in Coleman v Attridge Law means that workers in the UK now have new grounds for protection against discrimination and may also be entitled to demand flexible working hours to care for disabled or elderly relatives. The court ruled that workers should be protected from "associative discrimination" which in this case means discrimination against a non-disabled person on the grounds of their association with a disabled person. However, the principle of the ruling extends to all other areas of discrimination.
The impact will be particularly relevant to requests for time off and flexible working.
Statutory flexible working requests
If an employer refuses a statutory flexible working request made by an eligible person, the refusal may be discriminatory, even if the reasons for it fall within the statutory grounds for refusal. An eligible person here is a carer of a disabled child under 18 (their parent, guardian, foster parent or that person's spouse, partner or civil partner) or a person who cares for a disabled spouse, partner, civil partner, relative or housemate aged 18 or over.
Other requests to work flexibly or to take time off
If an employer refuses a request to take holiday or unpaid leave or for some other flexibility that is made by a carer of an elderly person or a disabled person, the refusal may be discriminatory under the relevant legislation.
The wider consequences mean that discrimination against any person who is associated with a person in a protected category is unlawful. The following could be examples of associative discrimination:
- failing to prevent staff mocking a colleague whose child is gay or perceived to be gay or whose spouse or partner is of a particular ethnic origin or religion;
- refusing time off to attend a civil partnership ceremony;
- being unsympathetic to the needs of employees who care for elderly parents;
- not giving a job to a well-qualified applicant who cares for a disabled child.
The ruling will apply immediately to public sector employers. For employers in the private sector, the precise legal impact will be seen later this year when the case returns to the employment tribunal for a decision on how to apply existing UK law in light of it. However, the prudent advice for all employers is to take action now to pre-empt claims of this kind. This means:
- looking again at equal opportunities and harassment policies to ensure they are wide enough to cover associative discrimination;
- reviewing flexible working policies to ensure that one of the grounds for consideration is potential association with a protected person;
- ensuring that managers who deal with flexible working requests and requests for time off are aware of the issues they should be considering.
See: The full judgment