A landmark decision by an Employment Appeals Tribunal (EAT) may lead to ‘associated discrimination’ becoming an explicit feature of UK legislation if the European Court of Justice (ECJ) agrees with the principle. The EAT decision confirmed that a case originally referred to the ECJ by an Employment Tribunal (ET) should be allowed to proceed.
The ECJ will rule on the interpretation of the Equal Treatment Framework Directive 2000/78/EC, to establish whether or not those who are associated with a disabled person (such as a carer) can claim protection under the Disability Discrimination Act 1995.
In June, Workplace Law reported that Ms Coleman, who worked as a legal secretary for London solicitors Attridge Law had won the right for an unfair treatment claim against her employer to be referred to the ECJ on the basis of the primary caring role she has for her disabled son
The case was subsequently appealed by the employer, on grounds which included the argument that it was not appropriate for an ET to refer a case to the ECJ, but the EAT disagreed.
The case is significant in a number of ways in terms of precedent. This is the first time that an EAT had been asked to overturn a referral to the European Court by an ET. It is also the first occasion where any UK court has referred a question to the European Court regarding disability discrimination.
The EU Equal Treatment Directive deals with equal treatment in employment and occupations and aims to combat discrimination on the grounds of religion, belief, disability, age or sexual orientation. Although she is not disabled, Coleman’s lawyers contend that the Directive protects her from unfair treatment which comes from her association with a disabled person. Associated discrimination is agreed by lawyers to be operative in cases of race and sexual orientation and the ECJ’s decision could be the first time that disability discrimination will be considered to apply in these circumstances.
Coleman claims she was subjected to unfair treatment by her employers, including being criticised and described as ‘lazy’ when she wanted to take time off to care for her child, and not being allowed to work from home although other employees experienced no obstacles when wanting to care for their non-disabled children. She also claims she was placed in a pool of staff selected for redundancy after she said that she wanted to make a formal request for flexible working to care for her child, and that these actions created a hostile atmosphere which forced her to resign in March 2005.
Lucy McLynn of Bates, Wells & Braithwaite who acted for Coleman, told Workplace Law that if the ECJ agrees that the EU Equal Treatment Directive does extend protection to employees in this way, the case will then return to the ET for a decision to be made on the merits of Coleman’s particular case. She commented:
“It makes no sense that there is protection from less favourable treatment of, say, a wife on the grounds of her mixed-race marriage, but not on grounds of her having a disabled husband. This inconsistency not only leaves carers unprotected when they are a particularly vulnerable group, but also creates uncertainty for employers. A ruling from the ECJ in this case – which I certainly expect to be in Ms Coleman’s favour – will clarify the scope of protection from associated discrimination and provide a basis upon which everyone in the workplace can operate lawfully”.
It’s also possible, if the ECJ does rule in this way, that the UK Government will come under pressure to pass new legislation amending the wording of the DDA to clarify the position.
The Disability Rights Commission, which is supporting the case, is campaigning to extend protection under the DDA to the 6 million people they estimate are currently providing unpaid care in Britain.
Stephen Brookes MBE
Disability Research and Journalism