Seven HR

Landmark European Court of Justice decision opens the floodgates to discrimination claims by carers of disabled individuals.

Employees with disabilities have been protected from being discriminated against or harassed in the workplace for a reason related to their disability for almost 13 years under the Disability Discrimination Act 1995 (the DDA).

In the ongoing case of Coleman v Attridge Law the Claimant, Mrs Coleman, has sought to extend this protection to employees who are discriminated against because of their association with a disabled person.

Mrs Coleman, who is not disabled, is the primary carer of her disabled son. She claims that by refusing her flexible working requests and accusing her of using her son's illness to get time off work her former employer treated her less favourably than employees with non disabled children.

The DDA does not deal with discrimination by association. However, the European Court of Justice (the ECJ) last week ruled that the Community Directive, which is the legislation from which the DDA derives, protects employees who are not themselves disabled.

Far reaching implications

The ECJ's decision means that:

• employees in the public sector can now bring claims based on associative disability discrimination against their employers;
• employees in the private sector may also be able to bring these claims although this will be harder. They will have to argue that the DDA should be interpreted in the light of the ECJ's decision; and
• employers could now also face claims for associative age discrimination. (Associative discrimination is already unlawful on the grounds of sex, sexual orientation, race and religion or belief.)

Action

Following this decision prudent employers should:

• review their equal opportunities and flexible working policies; and
• ensure employees know that discriminatory behaviour, whether it is aimed at an employee's own characteristic or that of somebody they are associated with, will not be tolerated.

Joanne Houseman
Solicitor
Gordons LLP