The European Court of Justice (ECJ) has ruled that the Employment Equality Directive (2000/78/EC) which prohibits disability discrimination and harassment in the workplace applies to employees who care for disabled persons. The protection afforded by the Directive is not limited to employees who are themselves disabled.
In the case of Coleman v Attridge Law and Steve Law, Mrs Coleman alleged that she had been constructively dismissed and treated less favourably than employees with non-disabled children because she was the primary carer of her severely disabled son. She argued that because of her role as a carer her employer refused to allow her to return to her previous job upon her return from maternity leave and also refused to allow her to work flexibly. She also claimed that abusive and insulting comments had been made about her and her child.
The ECJ ruled that the purpose of the Equality Directive is to combat discrimination and that limiting the application of the Directive to disabled persons would limit its effectiveness. It therefore ruled that the Directive applies to carers of disabled persons in the same way as it does to those who are themselves disabled.
This decision may lead to an increase in requests for flexible working by employees who are primary carers. While carers already have a statutory entitlement to request flexible working, employers need to be aware that a refusal of a flexible working request made by a carer may in future give rise to a discrimination claim. Employers should therefore aim to ensure that any refusal of such a request can be objectively justified.
The same principle would presumably apply to employees who care for elderly persons, on the basis that any difference in treatment might constitute age discrimination.
Employers should ensure that employees, and prospective employees, who are caring for the disabled or elderly are not treated less favourably than other employees. Company policies that cover equal opportunities, recruitment and flexible working should be reviewed and updated in light of this decision.
The Government has indicated in its response to consultation on the Equality Bill (published on 21 July 2008) that it is not its intention to introduce protection against discrimination for carers. It has, however, indicated that it is considering what the implications of Coleman might be for discrimination by association.