The Advocate General has handed down his opinion in the important case of Coleman v Attridge Law & Steve Law. The Advocate General (whose opinion is usually followed by the ECJ) has stated that direct discrimination and/or harassment by association is prohibited by the EC Equal Treatment Framework Directive (2000/78/EC).
What happened in this case?
In 2006, South London Employment Tribunal referred to the ECJ the question as to whether the EC Equal Treatment Framework Directive (2000/78/EC) (the “Directive”) protects not only disabled employees from direct discrimination and/or harassment, but also those employees who are associated with the disabled, such as carers.
The case concerned Miss Coleman, an employee of law firm Attridge Law, who cared for a disabled child. She claimed that her employer treated her less favourably than employees with non-disabled children and subjected her to conduct that created a hostile atmosphere for her. Examples of such conduct included calling her lazy when she sought to take time off to care for her son and refusing to give her the same flexibility as regards her working arrangements as those of her colleagues with non–disabled children. She made claims in the Employment Tribunal for constructive dismissal and disability discrimination under the Disability Discrimination Act 1995 (DDA).
On the face of it the DDA does not protect employees who are treated less favourably because of their association with a disabled person. This is because the DDA limits its protection to “treatment” of the disabled person. Before the Tribunal, Miss Coleman argued that the DDA should be interpreted in line with the Directive. As the Tribunal was unclear as to whether discrimination by association is in fact prohibited by the Directive, it took the unusual step (for a Tribunal) of referring the question to the European Court of Justice (ECJ).
The Advocate General said that the Directive makes it impermissible for an employer to rely on religion/age/disability etc to treat employees less well than others, as to do so would amount to subjecting these individuals to unjust treatment and failing to respect their dignity and autonomy. This fact does not change when the employee who is the object of discrimination is not disabled herself. The Directive protects against discrimination “on the grounds of” disability, and the “ground” which serves as the basis of the discrimination the employee suffers, continues to be disability whether or not the employee is herself disabled.
What does this mean for employers?
As the DDA does not explicitly prohibit discrimination by association, the next hurdle for Miss Coleman (assuming the ECJ agrees with the Advocate General) will be to see if the UK Courts are prepared to interpret UK law by, for example, implying additional wording into the DDA to achieve the purpose of the Directive.
Public sector employers are automatically bound by the Directive and so if the ECJ agrees with the Advocate General, they will need to ensure that they do not discriminate against those associated with disabled persons. For private sector employers, the same will apply if the UK Courts are prepared to imply the necessary wording into UK legislation directly. If not, the Government may need to change the relevant legislation if necessary to bring it in line with the Directive.
An ECJ decision in favour of Miss Coleman could have wide reaching implications for flexible working rights, and in particular requests to work flexibly from carers of disabled persons. Where such requests are received, employers should take extra care that they are treated no less favourably than how they treat requests to care for the non-disabled persons (such a request to care for non-disabled children).
Although the reference to the ECJ was limited to persons who are disabled, the Advocate General indicated that the same principle will apply to any of the prohibited grounds listed in Article 1 of the Directive (namely religion or belief, disability, age or sexual orientation). This means that the Directive would, for example, protect a person from discrimination because he or she is married to a person belonging to a particular religious group.
The case therefore has wider implications beyond flexible working rights to care for the disabled. It is already well established that refusal to allow a woman to work flexibly could give rise to a claim for indirect sex discrimination. A policy requiring employees to work night shift, for example, might have a disproportion adverse effect on women because women are more likely to bear the responsibility for child care so refusal of a request by a female employee to work the day shift might be indirectly sex discriminatory.
UK law already covers direct discrimination by association in areas such as race, religion and belief and sexual orientation, but not age. If the ECJ agrees with the Advocate General, the Directive would protect those employees who request to work flexibly to care not only for the disabled, but also the elderly for example. Hence, if an employer treats flexible working requests to care for elderly relatives less favourably than requests from employees who wish to care for young children, this could possibly give rise to a claim for direct discrimination by association on the grounds of age. Note, however, that as the Employment Equality (Age) Regulations 2006 do not cover discrimination by association on the grounds of age, it will be for the UK Courts to interpret the regulations in accordance with the purpose of the Directive. If the Courts refuse to do this, the Government will need to change them to bring them in line with the Directive.
It is worth noting that this case does not deal with indirect discrimination by association. To illustrate this, take for example an organisation where most of the requests to work flexibly come from employees seeking to care for elderly relatives; any policy which restricts the flexible working rights of all employees would have significantly greater adverse impact on those employees with elderly relatives. Such a policy would, in theory, be indirectly discriminatory against such employees because of their association with their elderly relative.
On a practical note…whilst we wait for the final decision of the ECJ and then the return of the Coleman case to the UK Courts, employers should be prepared to review their flexible working policies and include in them clear guidelines on how to deal with all requests for flexible working (regardless of the reasons for a request) and a set of business requirements to be used by managers when considering such requests. This would give employers a better chance of dealing with individual applications consistently and avoiding discrimination claims.