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Discrimination by Association: a Landmark ruling
Last week the Advocate General of the European Court of Justice (ECJ) issued his opinion in a case which could have significant repercussions for employers.
Background
The ruling came about after Ms Coleman – a legal secretary - brought a claim in 2006 in the Employment Tribunal for unfair constructive dismissal and direct disability discrimination. She returned to work after the birth of her child who was disabled and claimed that her employers refused to let her go back to her original post, said she was lazy when she asked if she could take time off, threatened her with disciplinary action and harassed her also making derogatory remarks about her, child’s health.
However as Ms Coleman is not herself disabled, her circumstances would seem not to be covered by the Disability Discrimination Act 1995 (DDA). Ms Coleman argued in her Employment Tribunal that the DDA should be interpreted to include those treated less favourably because of their association with a disabled person. Due to the novel nature of the point, the tribunal took the decision to refer the matter to the European Court of Justice for a ruling.
The Framework Directive
The European Framework Directive (2000/78/EC) is the basis for much of the recent discrimination legislation introduced by member states obliging them to provide protection from discrimination “on the grounds of religion or belief, disability, age or sexual orientation”. As is emphasised in the decision of the Advocate-General, the important words are “on the grounds of” which are generally taken to mean that the discrimination legislation also covers those who are associated with someone from the protected group. This wording has been successfully transferred into UK legislation in the Regulations which provide protection from discrimination on grounds of sexual orientation, religion or belief. However, this is not the case with disability discrimination – nor, arguably, with age.
The DDA provides protection for a disabled person only against discrimination on the grounds of that disabled person’s own disability, not “on grounds of disability” more generally. This has always been accepted as meaning that the protection of the DDA does not extend to individuals who suffer discrimination as a result of their association with someone who is disabled.
However, the Advocate-General’s view is that the Framework Directive is indeed intended to cover those discriminated against as a result of their association with a disabled person as this “subtle and less obvious” way of discriminating can just as easily undermine someone’s dignity. This means that the UK domestic legislation as currently drafted may not properly reflect the intention of the Directive, leaving the UK Government having to consider whether it will have to adjust its domestic legislation accordingly.
Implications
The implications will depend on whether the ECJ itself decides to follow the Advocate-General’s Opinion but, assuming that it does, this will mean that the Employment Tribunal in the Coleman case will firstly have to decide whether the DDA is capable of being interpreted in a way that will enable Ms Coleman’s case to proceed.
If it decides that it is, then the Tribunal will continue to hear her case and decide whether Ms Coleman was discriminated against and harassed as a result of her caring for her disabled child, which may be persuasive in any future cases. If, however, the Tribunal decides that the wording of the DDA does not allow such a claim then domestic legislation will not reflect the requirements of the Framework Directive and the UK Government may find itself having to amend the DDA.
To interpret the DDA in line with the Advocate General’s opinion will stretch the interpretation of the DDA as currently drafted. However, if the Tribunal feels able to apply the DDA in a purposive way - or if legislation is ultimately amended to bring it into line with the Directive – employers will have to keep in mind the implications of the DDA when dealing with an employee who has caring responsibilities for someone who is disabled, to ensure that they are not treated less favourably because of that association. The ruling does not automatically impact on the need to make reasonable adjustments although the relevant provisions of the DDA could also be amended to keep it in line with the rest of the legislation should the Government choose to do so.
Any such changes would be a significant extension to the existing legislation and developments in this case are therefore eagerly awaited.
Further information
For more information on the issues raised in this ezine or any other discrimination or employment related business, please contact Jill Bell, Deborah Solley or your usual contact in the Employment Team.
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