19/01/2009

Employment e-Brief – Prohibition on associative disability discrimination and harassment.

The Disability Discrimination Act 1995 (the “DDA”) refers only to discrimination “against a disabled person” and harassment relating “to the disabled person’s disability”; importantly it does not expressly protect individuals from discrimination or harassment where they are not themselves disabled, but are associated with a disabled person.

Nevertheless recently the European Court of Justice confirmed that the Framework Directive should prohibit associative disability discrimination and harassment.

This issue was considered in the case of Coleman v Attridge Law where the tribunal had to decide whether it could interpret the DDA to give effect to the Framework Directive and thus allow a consideration of discrimination against, or harassment relating to, association with a disabled person.

In this case Ms Coleman, who was not disabled herself but was the primary carer of her disabled son brought a tribunal case alleging that her former employer had subjected her to direct discrimination and harassment contrary to the DDA. A preliminary issue was whether a claim could be brought at all on the basis of an association with a disabled person.

The tribunal took the view that the Framework Directive suggested that Ms Coleman’s treatment should be covered however decided to stay proceedings and ask the European Court (ECJ) whether associative discrimination is indeed contrary to the Framework Directive. Despite Attridge Law appealing, the Employment Appeals Tribunal took the view that DDA could be interpreted purposively as covering associative discrimination and confirmed that reference to the ECJ should go ahead in order to discover whether that interpretation was required.

The ECJ held that associative discrimination fell within the Framework Directive’s protection and thus when the case returned to the tribunal they concluded that the aim of the DDA was to give full effect to the disability provisions of the Framework Directive.

This decision will undoubtedly be of benefit to the carers of the disabled who can rely on the DDA where they consider they have been treated less favourably in connection with their caring responsibilities and employers will need to be wary of associative disability discrimination in respect of those employees who undertake caring obligations.

If you need any help or guidance in applying this, please contact a member of the employment team.