Gardner Leader

Associative Discrimination

The European Court of Justice has ruled in the case of Coleman v Attridge Law that under the Equal Treatment Directive people may suffer direct discrimination or harassment in their employment if they are associated with a disabled person even if they are not themselves disabled. In this article, Julie Taylor, Solicitor at Gardner Leader LLP, provides an overview of the meaning and importance of this recent ruling to both employers and employees.

What is the case of Coleman v Attridge Law?

Mrs Coleman was not herself disabled but was the primary carer of her disabled son. She presented a claim of direct disability discrimination and harassment to the Employment Tribunal, on the basis that she had been discriminated against because she cared for a disabled person.  This is known as “associative discrimination.” Associative discrimination is not expressly prohibited by the UK Disability Discrimination Act, which is intended to implement the relevant parts of the European Equal Treatment Directive.

Therefore, the question immediately arose as to whether Mrs Coleman was entitled to bring a claim for direct discrimination even though she was not herself disabled.  The Employment Tribunal referred the question directly to the European Court of Justice.

The ECJ ruled that that associative discrimination was intended to be prohibited by the European Equal Treatment Directive and therefore direct discrimination by association with a disabled person is contrary to the Directive.

Now that the ECJ have ruled on this question the case will be referred back to the Employment Tribunal.

What does the Employment Tribunal have to decide?  

The Tribunal have to decide firstly whether there are facts that establish discrimination and then whether the UK Disability Discrimination Act effectively prohibits associative discrimination as required by the Equal Treatment Directive.  The Directive itself is only directly enforceable in the case of public sector employees.  Employees in the private sector, such as Mrs Coleman, are in a more difficult position.

This means that if the UK legislation cannot be interpreted to confirm that associative discrimination is unlawful, Mrs Coleman’s claim against her employers under the Disability Discrimination Act will not succeed despite the ECJ ruling.  If this happens, Mrs Coleman will only be able to seek redress by bringing further proceedings against the Government for failing to implement the Directive correctly.  Other private sector employees would also have to follow the same route until the UK law is changed to bring it into line with the Directive. 

What does this mean for employers?

The ECJ has laid down a clear marker that UK law will have to provide protection from discrimination for those with responsibility for disabled persons.  As the Equal Treatment Directive also covers other types of discrimination such as age, it is likely that similar protection will be afforded in the future to carers in those sectors as well.  This means that employers will have to be careful to ensure that their policies and procedures ensure that any requests for flexibility or other arrangements to help carers meet their responsibilities are properly dealt with.

For more information on similar issues or Gardner Leader's Employment team, please click here.

[Back]