The European Court of Justice (ECJ) has this morning published its decision in Colman v Attridge Law and has ruled that the Disability Discrimination Act 1995 not only protects disabled employees, but also protects non-disabled employees who are discriminated against by reason of their 'association' with the disabled person.
The decision of the ECJ follows the Advocate General's opinion which we reported on in our newsflash of 5 February 2008..
The Disability Discrimination Act currently provides protection for disabled employees against acts of discrimination by their employers. Following this ruling by the ECJ, non disabled employees will also be protected by the Disability Discrimination Act if, for example, they are discriminated against on the grounds that they are the primary carer of a disabled person or otherwise associated with a disabled person. This means that employers will need to ensure that any such employees are not treated less favourably when compared to their colleagues who do not care for a disabled person, for example penalising them for any additional time off required to look after the disabled person they care for.
Furthermore, employers will also need to ensure that the employee is not subject to any harassment by colleagues on the grounds that they care for a disabled person.
Although the ECJ decision was in respect of Disability Discrimination it does have implications for other areas of discrimination. Therefore, we may well see amendments to other discrimination legislation in due course.
Mrs Coleman, the Claimant, was employed as a legal secretary for Attridge Law, the Respondent.
The Claimant was not disabled herself but the primary carer for her disabled son. The Claimant brought claims under the DDA arguing that she had been less favourably than employees with non-disabled children. Among the examples of the discriminatory treatment the Claimant alleged she suffered was that the Respondent:
- refused to allow her to return to her existing job after coming back from maternity leave;
- called her ‘lazy’ when she sought to take time off to care for her son; and
- was less flexible in relation to her working arrangements than in respect of her colleagues with non-disabled children.
The DDA, if read literally, only prohibits discrimination against people who themselves have a disability. The Claimant argued that this did not properly reflect the Directive, as this prevents discrimination not only against disabled persons but also against individuals who are victims of discrimination because they are associated with a disabled person.
The UK Employment Tribunal referred the case to the ECJ and asked whether the EU directive on Equal treatment applied only to those employees who were themselves disabled or, to employees who are carers of a disabled person.
The ECJ decided that the EU directive means that there should be no discrimination whatsoever on the grounds of disability and that the purpose of the directive is to 'combat all forms of discrimination'. Therefore the directive did cover Ms Coleman's situation and did prohibit direct discrimination and harassment on the grounds of disability, even where the individual concerned was not disabled themselves.
As a result UK law may need to be amended to bring it in line with this decision.