20/11/2009

Gordons LLP Employment e-Brief – ‘Associative’ discrimination covered under the Disability Discrimination Act 1995

A recent case has clarified that it is possible for those who care for others who have disabilities to claim for what is called “associative discrimination”.

In ETR Attridge LLP and another v Coleman (No 2) the Employment Appeals Tribunal (the “EAT”) upheld a tribunal’s decision that words should be read into the Disability Discrimination Act 1995 (the “DDA”) to cover discrimination by reason of, and harassment related to, a third person’s disability.

Background

The DDA prohibits discrimination in employment “against a disabled person” and harassment relating “to the disabled person’s disability”. Protection for non-disabled individuals from discrimination or harassment based on their association with a disabled person is not expressly provided for.

The DDA was amended on 1 October 2004 in order to implement the relevant provisions of a European directive on Equal Treatment (the “Directive”). Where there is no specific provision covering a particular issue, a national court or tribunal is required to interpret national law, so far as possible, in the light of the wording and purpose of a European directive.

Facts

Ms Coleman brought a tribunal claim alleging that her former employer, law firm Attridge Law (now EBR Attridge LLP), and one of it’s partners had subjected her to direct discrimination and harassment contrary to the DDA. Ms Coleman is not disabled for the purposes of the DDA but is the primary carer for her disabled son.

Before Ms Coleman’s claim could be considered it was necessary to determine whether she was entitled to bring a claim under the DDA, based on her association with a disabled person rather than on a disability of her own. The tribunal made a reference to the European Court of Justice to determine whether associative discrimination is prohibited by the Directive. The European Court of Justice held that the Directive prohibits direct discrimination and harassment on the grounds of disability in respect of a person who is not disabled but is the primary carer of a disabled child.

The case then returned to the tribunal, which held that it was obliged to interpret the DDA, so far as possible, as applying to associative discrimination. The tribunal achieved this by reading additional words in the DDA so as to protect not only a disabled person but also a person associated with a disabled person.

Attridge appealed to the EAT arguing that the tribunal had distorted and re-written the DDA.

The effect of the judgement

The EAT dismissed the appeal but rejected the tribunal’s proposed wording and instead chose to add two new sub-sections into the DDA.  The new sub-sections ensure that protection under the DDA is now not limited to those associated with a disabled person but also covers those who suffer direct discrimination or harassment based on the disability of any third party. The judgement does confirm however, that there is no obligation on employers to make reasonable adjustments for carers of disabled people.

The case could have implications for other areas in which associative discrimination does not appear to be covered by UK legislation, for example in respect of age and sex discrimination. The Government has already decided to prohibit these forms of discrimination under all strands in the forthcoming Equality Bill, which is intended to come into force in October 2010.

If you have any queries in relation to the information contained in this e-brief please contact a member of the employment team.