THE Advocate General of the European Court of Justice (ECJ) has issued his opinion in a case which could have significant repercussions for employers.
The ruling came about after Sharon 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 had a di
sability and claimed that her employers had: refused to let her go back to her original post; said she was lazy when she asked if she could take time off to care for her son; threatened her with disciplinary action and harassed her by making derogatory remarks about her child's health.
However, as Coleman is not herself disabled, her circumstances would seem not to be covered by the Disability Discrimination Act 1995 (DDA). 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 referred the matter to the ECJ for a ruling.
The European Framework Directive (2000/78/EC) is the basis for much of the recent discrimination legislation introduced in the UK. It obliges member states 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 the discrimination legislation also covers those who are associated with someone from the protected group. This wording has been transferred into UK legislation in the regulations that provide protection from discrimination on grounds of sexual orientation or religion or belief. However, this is not the case with disability discrimination.
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 the protection of the DDA does not extend to those who suffer discrimination as a result of association with someone who is disabled. However, the Advocate-General's view is that this framework directive does cover those discriminated against as a result of their association with a disabled person, stating this "subtle and less obvious" way of discriminating can just as easily undermine someone's dignity. This means the UK domestic legislation may not properly reflect the intention of the directive, leaving the UK Government having to consider the need to amend its domestic legislation accordingly.
The implications will depend on whether the ECJ decides to follow the Advocate-General's opinion but, assuming it does, the Employment Tribunal in the Coleman case will firstly have to decide whether the DDA can be interpreted in a way to enable Coleman's case to proceed.
If it decides it is, then the tribunal will continue to hear her case and decide whether 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 the wording of the DDA does not permit 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.
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, say, caring responsibilities for someone who is disabled, to ensure they are not treated less favourably because of that association.
Although this ruling does not automatically impact on the need to make reasonable adjustments, the government may prefer to amend the relevant provisions of the DDA to keep them in line with the rest of the legislation.
Any such changes would be a significant extension to the existing legislation, and developments in this case are therefore eagerly awaited.
• Jill Bell is head of Anderson Strathern's discrimination unit.
The full article contains 699 words and appears in The Scotsman newspaper.
