Employment: discriminaton by association or perception

In the Coleman case, the European Court of Justice 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. On the same principle, direct discrimination or harassment based on perceived disability is likely to be illegal. This may well be the case under current UK law, but both are to be more clearly covered in the new Equality Bill.

European court ruling

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.

Direct discrimination and harassment are likely to be prohibited even if they are not against the disabled person himself. Thus an employee had a claim if she was treated less favourably, or harassed, because of her child's disability.

The ruling only applies to direct discrimination and harassment, not to reasonable adjustments or disability-related discrimination. Outside of the DDA, though, there is a right to request flexible working (link to direct.gov.uk).

Also, the ruling only extends to employment and related fields covered by the Framework Employment Directive.

Back in the UK tribunal...

The case went back to the Employment Tribunal following the ECJ ruling. The Employment Tribunal decided in November 2008 that the DDA can be interpreted consistently with the European ruling (more below: Re-interpreting the DDA) - so the European ruling can be applied without having to wait for the DDA to be amended. In October 2009 this view was upheld by the Employment Appeal Tribunal - link to EAT decision (on EAT website).

The case could therefore go forward to a full hearing to consider whether or not the employer did actually discriminate and/or harrass because of the claimant's association with her disabled son. This is subject to whether the employer obtains leave to appeal to the Court of Appeal.

Re-interpreting the DDA to cover discrimination by association

On a literal reading, the DDA is limited to discrimination against, or harassment of, the disabled person. However, UK tribunal decisions have held that the DDA provisions on direct discrimination and harassment can and should be interpreted to include situations where the relevant disability is that of someone else, as required by the European Court decision in Coleman above (commonly known as 'discrimination by association').

UK tribunals need to interpret UK legislation "so far as possible" to comply with the Framework Employment Directive, and the directive requires discrimination by association to be covered. However, the wording of the DDA clearly does not cover discrimination by association. So is it 'possible' to interpret the DDA to cover it? The UK tribunals in the Coleman case have answered 'yes' in various decisions. The most recent was the Employment Appeal Tribunal's October 2009 decision on Coleman (link to EAT website). The EAT considered the previous authorities, and said that even if the DDA is clear, wording can be written into the statute to change its meaning. There are limits on what is 'possible', namely the courts cannot change the statute in a manner which is not "compatible with the underlying thrust of the legislation" or which is "inconsistent with the scheme of the legislation or its general principles." In the present case though, extending the DDA to cover associative discrimination would be fully in conformity with the aims of the DDA as drafted. The EAT suggested the wording that the courts might read into the DDA.

The EAT considered that discrimination by association was covered with effect from 1st October 2004, when the UK regulations intended to implement the Framework Employment Directive came into effect.

Proposed amendment of the DDA - Equality Bill

The Equality Bill includes protection against direct discrimination and harassment for those who are 'associated with' someone who is disabled, or those who are 'perceived' to be disabled. For more see under 'Proposed changes': Discrimination because of association, or perceived disability.

Relevance to stammering?

How important for stammering is discrimination by association? Perhaps not very. However, the decision could 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...

Perceived disability

It is very possible - indeed likely - that under the European Framework Employment Directive direct discrimination and harassment based on perceived disability are also illegal. Perceived disability is where the person does not actually have the disability but the discrimininator mistakenly thinks they do. The Coleman case (above) focussed on discrimination based on association, but it can be strongly argued that on similar reasoning the Directive also covers perceived disability, on the basis that the discrimination or harassment is "on grounds of" or "related to" disability even if claimant does not actually have one.

Assuming that the Directive does cover perceived disability, it could also be argued that, as the tribunals have held in the Coleman case above, the existing law must be interpreted so as to include direct discrimination and harassment based on perceived disability (or alternatively, if it is a public sector employer, that the Directive has 'direct effect').

Case before Employment Appeal Tribunal

A case on perceived discrimination is being considered by the Employment Appeal Tribunal (EAT), and may well go to the European Court of Justice: DLA Piper denies lawyer's discrimination claim (link to Law Society Gazette), 4/2/10. A tribunal judge seems to have ruled that although the claimant had been taking anti-depressants for some years, she suffered no impairment as a result of her condition and so was not disabled under the DDA. The claimant argues that her history of depression led the employer to "perceive" she was disabled and to discriminate against her on those grounds. The EAT hearing was early February 2010.

Relevance to stammering

One important way this could be relevant is in a case where a stammer does not actually have a substantial (i.e. more than minor or trivial) effect on normal day-to-day activities. It may well be that the employer perceived that the stammer would such an effect - many work activities would count as "normal day-to-day activities". Indeed would the employer have discriminated otherwise? It is very possible (but not yet clear) that the employer's perception will be enough to bring the case within the DDA, provided the claim is for direct discrimination or harassment in an employment/work context. The argument will probably not apply to other types of discrimination such as the reasonable adjustment duty, because the Employment Directive wording there is different. Even for direct discrimination and harassment though, a claimant's main argument is likely to be that their stammer does have the required substantial effect (as should very often be the case), with the 'perceived disability' argument as a backup. The current legal position on perceived disability will presumably not be established until one or more cases on it such as DLP Piper (above) have been through the courts.

Equality Bill

The Equality Bill's wording will be wide enough to include protection against direct discrimination and harassment based on perceived disability (3rd April 2009 announcement).

Previous discussion

In its 2007 Green paper on proposals for a Single Equality Bill, the Government had said it was not persuaded that it would be a proportionate approach to extend DDA protection to those who are perceived to be disabled (para 1.22).

The Disability Rights Commission, on the other hand, had recommended that discrimination because a person is mistakenly treated as disabled should be explicitly included in the DDA. The DRC argued that this change is required by the Framework Employment Directive. For cases of discrimination by perception (or association) there should be a right to equal treatment - but not to reasonable adjustments, because under the directive only disabled people have a right to adjustments. The DRC recommended this, not for the first time, in its July 2006 'Definition of Disability within anti-discrimination law: Recommendation to Government' (part 8 of the document) - and again in pages 32-33 of its 2007 A Framework for Fairness Response (on archived DRC website).

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