Discrimination by Association – Watch your Step!

In Coleman –v-Attridge Law the European Court of Justice (ECJ) has held that the Equal Treatment Directive should be interpreted as protecting those who, whilst not disabled themselves, nevertheless suffer discrimination or harassment owing to their association with a disabled person. This also suggests the same should apply to discrimination in respect of sexual orientation, age and religion or belief, despite there being no such existing domestic legislation. 

Ms Coleman is not disabled herself, but gave birth to a son who suffers from severe apnoeic episodes, wherein his respiration would suddenly stop, without warning, with all the horrendous consequences that presages. He was in need of constant supervision and, not surprisingly, the likelihood of parental care at short notice. In view of this, Ms Coleman applied to her employers, a firm of London solicitors, for similar flexible working arrangements already granted by them to parents who satisfied the existing regulations.

Showing the compassion and perspicacity for which law firms throughout the world are renowned, when Ms Coleman asked sought to take time off to care for him – with the proviso that she would not, overall, work less hours- her employers accused her of being “lazy” and accused her of attempting to cynically manipulate her working conditions for her own, selfish reasons. As a result, she eventually accepted “voluntary” redundancy and left the Company. However, after seeking legal advice she brought claims under the Disability Discrimination Act 1995 (DDA), arguing that she had suffered discrimination by association with her son, and his disability.

As readers will know, there is three month time limit for bringing such complaints. As Ms Coleman was allowed to present her claims some five months afterwards, under the Tribunal’s general discretion to allow in late claims in the interests of justice, it should have been apparent to anyone where the Tribunal’s sympathies were likely to lie. It may, perhaps have been expected that lawyers would have picked up on this. Alas not. The fact that the firm in question did not possess an employment department is certainly significant, but hardly excusatory.

Caught between the wording of the DDA, which literally does not cover such discrimination, and its progenitor, the Equal treatment Directive, which does, the Tribunal referred the case to the European Court of Justice (ECJ) for a preliminary ruling. Inspired, no doubt by their spectacular success this far, the Respondents appealed to the Employment Appeal Tribunal (EAT) to overturn the Tribunal’s view. Its most senior Judge, sitting alone, gave that idea short shrift and endorsed the referral to the ECJ.

At the ECJ, both the Advocate General, in his preliminary opinion, and the full Court, held that Ms Coleman does indeed fall within the protection of the Directive. The principle of equal treatment does not, apparently, apply to particular types of person, but to particular grounds of discrimination. Although Coleman was not disabled : “the fact remains that it is the disability which is the ground for less favourable treatment”.

As the Directive also states that harassment is a form of discrimination, protection from harassment is also not limited to disabled people. If an individual can show facts tending to show direct discrimination or harassment then the burden of proof would reverse and fall upon the respondents, who would then be faced with the uphill struggle of proving no discrimination, in all likelihood by being able to prove any such treatment was due to objective factors unrelated to discrimination – no easy task.

The case has now been referred back to the Employment Tribunal in order to determine whether the DDA can be read in a way which gives effect to this view of the interpretation of the Directive. If, as seems likely, it cannot then the DDA will need to be amended to give effect to this ruling. In fact, the Government seems already to have conceded this; in announcing its consultation on the Equality Bill on 22 July, the Equalities Office has said it will be considering the effect of Attridge on the proposed Act, to say nothing of a similar view with regard to age, religion, belief and sexual orientation. So inexorably onward moves the development of regulation.

One might be tempted to observe that apposite employment legal advice, applied early on in the workplace, might have been avoided this whole furore………………………….