Employment: discriminaton by association

The European Court of Justice has held that under the Framework Employment Directive direct discrimination and harassment can be illegal even if they are against someone associated with the disabled person, e.g. the carer of a disabled child. This has been implemented in the Equality Act 2010.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The "Employment Code"
means the 2011 Equality Act Code of Practice on employment (pdf, link to EHRC website), which came into force on 6th April 2011. (More on EqA Codes of Practice)

European court ruling, and Equality Act 2010

In Coleman v EBR Attridge Law (July 2008) the European Court of Justice (ECJ) decided that 'discrimination by association' can be illegal in the workplace under the Framework Employment Directive. National legislation must comply with this directive. Thus direct discrimination and harassment are prohibited even if they are not against the disabled person himself. So an employee had a claim if she was treated less favourably, or harassed, because of her child's disability.

Tribunals held that the DDA could be reinterpreted to comply with the European decision. However, from 1st October 2010 discrimination by association is now in any event illegal under the wording of the Equality Act 2010.

From the Employment Code, para 3.19:
A lone father caring for a disabled son has to take time off work whenever his son is sick or has medical appointments. The employer appears to resent the fact that the worker needs to care for his son and eventually dismisses him. The dismissal may amount to direct disability discrimination against the worker by association with his son.

The Coleman case and the Directive only apply in areas related to employment. However, the Equality Act extends the same rule to other areas such as provision of services and education. Harriet Harman commented that this "is in keeping with the aims of the Equality Bill to simplify and strengthen the law" (full written statement by Harriet Harman (link to Hansard).

Only direct discrimination and harassment

The Coleman ruling, and the related wording in the Equality Act, only apply to direct discrimination and harassment, not to reasonable adjustments or disability-related discrimination. This is because of the way the directive is worded.

Outside of the Equality Act, though, there is a right to request flexible working (link to direct.gov.uk).

In April 2009, the House of Commons Work and Pensions Committee considered that carers should be given a right to reasonable adjustments under the Equality Bill (para 53-61 of their Report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk), and that carers should also be covered by the equality duty on public authorities (para 213). However, this has not been implemented.

Relevance to stammering?

How important for stammering is discrimination by association? Perhaps not very. However, the decision should apply for example to harassment at work for being friends with a colleague who stammers, or if a parent who has to take their child to speech therapy were harassed or allowed less flexibility than other parents.

What could be more relevant to stammering is the related issue of discrimination or harassment due to 'perceived' disability.

Going wider than discrimination by association

Codes of Practice

The Employment Code of Practice at paragraph 3.20 gives further examples of where less favourable treatment could be 'because of' disability:

"Direct discrimination because of a protected characteristic could also occur if a worker is treated less favourably because they campaigned to help someone with a particular protected characteristic or refused to act in a way that would disadvantage a person or people who have (or whom the employer believes to have) the characteristic. The provisions of the Act on instructing, causing or inducing discrimination may also be relevant here (see paragraphs 9.16 to 9.24)."

The Employment Code goes on to give an example:

From the Employment Code, paragraph 3.20
An employer does not short-list an internal applicant for a job because the applicant - who is not disabled himself - has helped to set up an informal staff network for disabled workers. This could amount to less favourable treatment because of disability.

The Services Code has a similar statement - and examples on services/associations - at para 4.19.

Background and Parliamentary statements

The Equality Act 2010 wording to cover discrimination by association or perception is in more general terms - it talks of discrimination or harassment 'because of' or 'related to' disability. There were calls, including from the Equality and Human Rights Commission, for the legislation to be clearer in expressly mentioning discrimination by association and perception. The Government rejected an amendment to this effect in the House of Commons Committee (col 251-256, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)). In doing so, the Solicitor General gave examples of instances, going beyond association and perception, that the Government intended the wider wording to cover:

"...The 'because of' turn of phrase in clause 13 is broad enough and is intended to be broad enough to cover much more than just cases in which the less favourable treatment is due to the victim's association with someone who has the characteristic or because the victim is wrongly thought to have that characteristic. The formulation is intended to and does cover cases, for instance, of less favourable treatment because of a refusal to comply with instructions to discriminate. It is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time.

'Direct discrimination' has a number of forms - a lot of different forms. Even after the Bill, what the definition covers will continue to evolve through the case law. That is really the point. We do not want, by specifying particular kinds of direct discrimination, to imply that we are excluding kinds of discrimination that might come about in a situation that we have simply not foreseen when setting out the clause. So, we favour what we see as a broad formulation."

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