Coleman v Attridge Law – Employment Appeal Tribunal ("EAT")
In March 2008, we commented on this case which centres on the concept of associative discrimination. Please click on the link to access the relevant article: http://www.twobirds.com/English/Publications/NewsLetters/Upload/Equality-Diversity_03.08.htm Since then, the EAT has given guidance on how the Disability Discrimination Act 1995 ('DDA') should be read to include protection for associative disability discrimination.
The DDA, on a literal reading, only provides protection for persons who meet the statutory definition of disability. Ms Coleman brought a disability discrimination claim under the DDA against her former employer, Attridge Law. Ms Coleman is not disabled, but is the primary carer of her disabled son. The European Court of Justice held that EU law prohibits 'associative disability discrimination' and the Tribunal added words to the DDA to effect this. Attridge Law appealed.
The EAT's decision
The EAT upheld the Tribunal's decision and added that there is "nothing impossible" about adding words to the DDA to cover associative discrimination. It went further than this, however, and proposed new wording which provides for much wider protection. The EAT's wording prohibits discrimination "by reason of the disability of another person" and harassment "relat[ing] to the disability of another person". This covers direct discrimination or harassment based on the disability of any third party. The EAT did not wish to make use of the word "association". It stated that "what matters is that the putative victim has suffered adverse treatment [on the ground of disability], and the fact that the disability is not his own is not of the essence". The EAT made it clear that it did not want Tribunals to become bogged down in discussing what does or does not amount to an "association" when that should not be the focus of the enquiry.
In addition, the EAT confirmed that the DDA should be read in this way from 1 October 2004.
What does this mean for you?
Whilst this Judgment will primarily benefit carers of disabled people, employers should be aware that its effect is not limited to carers or even those associated with a disabled person. It covers direct discrimination or harassment based on the disability of any third party.
It should be noted, however, that this case establishes no obligation to make reasonable adjustments pursuant to the DDA for carers.