The European Court of Justice (ECJ) delivered a significant ruling earlier this year which extends the scope of the UK disability discrimination legislation to those who are discriminated against because of their association with a disabled person but who are not themselves disabled. Until now only a person who was disabled could bring a claim under the Disability Discrimination Act 1995 (DDA).
Case Law
In Coleman v Attridge Law, the ECJ confirmed that the EU framework Directive does prohibit disability by association thereby finding the UK's implementation of European disability discrimination protection inadequate. The facts are not uncommon so the implications for employees and employers are potentially huge.
Sharon Coleman who worked as a legal secretary brought a claim of disability discrimination and constructive dismissal against her ex-employer claiming that she had been treated less favourably than other employees because of her son's disability. Ms Coleman's son was born with substantial respiratory problems and she had put in a request for more flexible working hours in order to care for him. She contended that other mothers at the firm had been granted flexible working hours and permission to work from home to care for children who were not disabled, whereas her request was turned down and she was placed in a pool of staff selected for redundancy. She also claimed to have been subjected to insulting and abusive comments as a result of her request and that this created a hostile working environment which gave her no option but to resign.
Ms Coleman argued that the failure of the DDA to recognise discrimination or harassment of a non-disabled person on the grounds of their association with someone with a disability provided much narrower protection in this area than other areas of discrimination legislation, for example the Race Relations Act. She also argued that it does not accord with the much wider wording and interpretation of the Framework Directive.
The tribunal considered that the wording of the Directive was not sufficiently clear so as to expressly protect against claims of discrimination by association and referred the matter to the ECJ for a ruling.
Result
The ECJ has confirmed that the Directive prohibits discrimination by association. The employment tribunal dealing with the Coleman case will need to consider whether the wording of the DDA can reasonably be interpreted in that way for her claim to proceed. A suggestion from the tribunal was that the words "or a person associated with a disabled person" might be added to this current catergory of discrimination to give proper effect to the Directive. The Government may choose to adopt similar wording in due course to cover all employers. In the meantime, public sector employers, to whom the Framework Directive applies directly, will need to review their actions very carefully.
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