The ECJ has ruled on associative discrimination in Coleman v Attridge Law, agreeing with the Advocate General that the Equal Treatment Directive is intended to protect not only those employees who are themselves disabled but those who are the primary carers for a disabled person, in this case Mrs Coleman’s young son.
In this case, Mrs Coleman worked as a legal secretary for Attridge Law. Her son, born in 2002, suffers from numerous health complications requiring specialised care. Mrs Coleman is his primary carer. In 2005 she accepted voluntary redundancy, then claimed unfair constructive dismissal and discrimination, alleging that her former employer;
- Refused to allow her to return to her existing job in circumstances where parents of non disabled children (‘other parents’) would have been allowed to take up their former posts
- Refused to allow her the same flexibility in working hours as other parents
- Described her as ‘lazy’ when she requested time off to care for her child whereas other parents were allowed time off
- Did not deal properly with her grievance
- Made abusive and insulting comments about her son
- Told her she would be dismissed if she arrived late again because of problems relating to her son’s condition when no such threat was made to other parents.
The ECJ considered whether the Equal Treatment Directive must be interpreted as prohibiting direct discrimination on grounds of disability only in respect of a disabled employee or whether the principle of equal treatment applied equally to an employee who is treated less favourably by reason of his child’s disability. It found that the Directive seeks to lay down, as regards employment and occupation, a general framework for combating discrimination and creating a level playing field. Those objectives would be undermined if an employee in Mrs Coleman’s situation could not rely on the prohibition of direct discrimination on the grounds of his child’s disability. For the same reason, the Directive must be interpreted as not being limited to the prohibition of harassment of people who are themselves disabled.
It should be noted that as Mrs Coleman’s claim was against a private not a public body her next step will be to show that the Disability Discrimination Act 1995 can be read purposively so as to comply with the spirit of the Equal Treatment Directive. Employers should be aware that the ramifications of this case will also extend to protections against associative discrimination on the grounds of age, sexual orientation, religion and belief.