Articles
Employment News from Simon Hughes
Coleman v Attridge Law On the 27th November 2008 the Employment Tribunal announced that it will read UK law consistently with European law to give protection to Sharon Coleman (and others in similar circumstances) with immediate effect and retrospectively to 1st October 2004 the date on which the amended Disability Discrimination Act came into force. This is undoubtedly an important decision and one which is likely to have a number of significant consequences for employers. It does not, however, go as far as some have suggested.
Factual Background
Sharon Coleman was employed as a Legal Secretary by a South London Law firm. Her employment started in 2001. In 2002 she had a child who suffered from a serious disability in the first years of his life. She returned to work and alleges that she was treated less favourably than other employees. Amongst other things she was referred to as lazy when taking time off to care for her child, subjected to disciplinary action for lateness and a grievance she raised was not dealt with properly. Her case came before the London South Employment Tribunal and it was decided that the matter should be referred to the European Court of Justice with a series of questions requiring clarification. It is of course an unusual step for the ET to refer a question directly to the ECJ and this decision was unsuccessfully challenged on appeal ([2007] IRLR 88)
Issue to be decided
The central issue in the Coleman case was the issue of “associated discrimination” and related to the correct interpretation of European Framework Directive (2000/78). The issue for the ECJ can be broadly summarised as follows “Does the directive protect non-disabled people who, in the context of their employment, suffer direct discrimination and/or harassment because they are associated with a disabled person?”1
It had always previously been assumed that, unlike under the Race Relations Act, associated discrimination under the DDA would not found a valid claim in domestic law. The distinction was drawn between the Race Relation Act which prohibited less favourable treatment “on racial grounds” (RRA s1(1)(a)) and harassment “on grounds of race or ethnic or national origins”(RRAs3A(1)) with the possessive formulation of the DDA which prohibited both “on the ground of the disabled person’s disability”. This perception must now change.
The Judgement
The Court rejected the argument that the principle of equal treatment that the directive is designed to safeguard is limited to people who themselves have a disability. The court accepted the Advocate General’s submission that;
“A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they too, affect the persons belonging to suspect classifications.”
Where it has been established that a person in Ms Coleman’s position suffered direct discrimination on grounds of disability the Directive is not limited to persons who are themselves disabled but extends to those who are discriminated against by virtue of their association with a disabled person. Equally as harassment is deemed to be a form of discrimination the same principle arises.
Effect? A Carer’s Charter?
There has been a degree of hysteria surrounding the above case. It has widely been portrayed in both the media and by a various commentators as a “Carer’s Charter”. It is submitted that this interpretation is too wide. The judgment does not place an obligation on employers to provide reasonable adjustments such as flexible working specifically for carers. The European Directive, under Article 5, imposes specific duties on employers to provide reasonable accommodation but is expressly limited to “persons with disabilities”. The duty is limited by its terms. The directive is quite clear that reasonable accommodation must be provided only for disabled people not those associated with them. This is specifically confirmed in the ECJ judgement.
Equally prohibition of indirect discrimination is also expressly limited under the Framework Directive to persons within the protected group; in this case those with disabilities. None of the questions posed by the tribunal dealt with the issue of indirect discrimination and the Advocate General doubted that in indirect discrimination claims associative discrimination would be unlawful. The judgement of the ECJ in Coleman is, it is submitted, limited to claims of direct discrimination and harassment.
In summary what Coleman establishes is that direct discrimination and harassment are barriers to carers’ participation in the workplace. This case removes the apparent inconsistency between the DDA and the RRA in cases of direct discrimination and harassment and prevents those with an association with a disabled person from being treated less favourably because of that association. The decision as to whether to impose any duty to make reasonable adjustments for the benefit of carers is one for the legislature and cannot be achieved by litigation.
Implications for Employers
Having said that the Coleman case will inevitably involve wholesale changes to employers’ practices in the field of disability discrimination. These may include;
- An update of diversity and equal opportunities practices and policies to avoid less favourable treatment of carers or partners of disabled people.
- An added importance to take full details from every job applicant regarding potential care responsibilities
- Inviting all employees to provide information as to their care commitments.
- It is important to keep in mind that each case must still be judged on its individual merits.
1 See the opinion of Advocate General Poiares Maduro dated 31st January 2008.
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