Discrimination by Association
Further to our e-zine earlier this year (click here to read) there have been additional developments in the landmark case of Coleman v Attridge Law. The case returned to the Employment Tribunal following its trip to the European Court of Justice earlier in the year and last week the ET held that the Disability Discrimination Act 1995 (DDA) is capable of protecting employees who suffer discrimination because of their association with a disabled person.
Background
As many of you will recall, although Mrs Coleman was not disabled herself she raised a claim under the DDA after her employer did not allow her to return to her previous role after giving birth to her son who was disabled. Ms Coleman's employer also allegedly accused her of being lazy when she asked for time off to look after her child. The problem facing the Employment Tribunal was whether the DDA could be interpreted in a way that provided protection to someone discriminated against because of their association with a disabled person. After a referral to the European Court of Justice, the ET has now decided that the DDA is capable of being interpreted in this way if you insert the words "or a person associated with a disabled person" into the DDA. As a result the case will now proceed to a full hearing on its merits. The case may be appealed by the Respondent but as matters stand, it appears cases can indeed be brought for discrimination by association under the existing provisions of the DDA without the need for the Government to amend this legislation.
Implications
Although undoubtedly an important case, commentators who have said that this latest development is likely to lead to sweeping new rights for carers may be overstating the point. This action was brought on the grounds of direct discrimination and harassment only and was not run as a case of disability related discrimination - or on the basis of a failure to make reasonable adjustments. This case therefore does not give a general right to greater flexibility for carers as has been reported in some articles in the press. What it does do, however, is create a new right for those who are treated worse than others or are harassed on the grounds of their association with a disabled person.
Managers should be briefed on this development to equip them to deal with any day-to-day situations which might arise. For example, if a member of staff is teased by work colleagues because of their friendship with someone who is disabled a right to bring a claim under the DDA may now arise. Similarly if an employee is treated less favourably because of their assocation with someone who is disabled that employee may pursue matters with reference to the DDA.
One other significant point to note is the possibility of attempts being made to have the concept of discrimination by association read into, in particular, age discrimination as a result of the above. This means that the points raised in this E-zine will be worth bearing in mind when considering how to deal with any similar issues arising in other analogous situations.
Further Information
If you have any queries concerning this or any other discrimination or employment related matter please contact Jill Bell or Euan Smith.
This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.
