The EU Court of Justice held that under the EU Framework Employment Directive, both indirect discrimination and the duty to make reasonable adjustments can apply in relation to someone else’s disability, at least as regards a parent seeking adjustments from her employer to care for her disabled child. Unless it spurs the government to amend the Equality Act 2010 (EqA), this case is more likely to apply in Northern Ireland than in the rest of the UK: Comment, below.
[2025] EUECJ C-38/24, EU Court of Justice, September 2025. “Bervidi” is a fictitious name, not the name of a party. Press release (pdf, curia.europa.eu). Full judgment www.bailii.org/eu/cases/EUECJ/2025/C3824.html
Facts
The claimant GL was responsible for monitoring and supervising an underground station in Italy. Her child, due to a disability, had extensive needs and needed to follow a care programme at a fixed time in the afternoon.
The claimant asked that her employer AB assign her permanently to a morning shift with fixed working hours, 8:30am to 3pm. AB had made some adjustments on a provisional basis, but not what she wanted.
An Italian court referred questions on her claim to the EU Court of Justice. She argued that EU law, the Framework Employment Directive, gave her a right to reasonable adjustments here, in respect of her child’s disability.
Decision of EU Court of Justice
Indirect discrimination “by association”
The EU court pointed out that it had held in Coleman that under the Framework Employment Directive, direct discrimination on grounds of disability is not limited to those who themselves have a disability. The court stated: “Where an employer treats an employee who does not himself or herself have a disability less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his or her child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination …”.
The EU court considered the objectives of the directive, the EU Charter of Fundamental Rights, and the UN disability convention. The court also pointed out that in CHEZ, on a similarly-worded discrimination directive, the court had held that the scope of the directive could not be defined restrictively, and that the principle of equal treatment applied not to a particular category of person but by reference to the grounds stated (racial or ethnic origin, in that case), so that the principle was intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless were subject to less favourable treatment or a particular disadvantage on one of those grounds.
The court concluded that the Framework Employment Directive “must be interpreted as meaning that the prohibition of indirect discrimination on grounds of disability applies to an employee who does not himself or herself have a disability but who is subject to such discrimination because of the assistance that that person provides to his or her child who has a disability, which enables that child to receive the primary care required by virtue of his or her condition”.
Reasonable adjustments
The EU court decided similarly that under Article 5 of the directive (Reasonable accommodation for disabled persons), the claimant had a right to claim reasonable adjustments from her employer in respect of her disabled child. This was subject to the adjustment not placing a disproportionate burden on the employer – that would be for the Italian court to assess.
The court held that the Framework Employment Directive “must be interpreted as meaning that an employer is required, in order to ensure compliance with the principle of equal treatment of workers and the prohibition of indirect discrimination referred to in Article 2(2)(b) of that directive, to make reasonable accommodation, within the meaning of Article 5 of that directive, in respect of an employee who does not himself or herself have a disability but who provides, to his or her child who has a disability, the assistance which enables that child to receive the primary care required by virtue of his or her condition, provided that that accommodation does not impose an unreasonable burden on that employer”.
My comment
Great Britain
The generally understood position in Great Britain (ie England, Wales and Scotland) is different from that decided by the EU court here and, in my view, will most likely not be affected by this EU court decision – unless Parliament amends the EqA. In summary, the generally understood British position is as follows:
- Indirect discrimination in Great Britain has been widened by s.19A EqA so that the claimant does not necessarily need to have the protected characteristic. However, s.19A says the claimant must be put at substantively the same disadvantage as people with the protected characteristic. On the face of it, an employee who is a carer for a disabled person, as in this EU case, will not normally be put at the same disadvantage as disabled people. See further “Same disadvantage” indirect discrimination (s.19A)>Need to suffer the same disadvantage. There I give the example of Follows v Nationwide Building Society, involving an employee who cared for a disabled parent, where again the claimant does not seem to meet the s.19A requirement of being put at the same disadvantage.
(Carers may though have claims for indirect sex discrimination under the EqA, including potentially male carers under s.19A; and/or carers might request flexible working.) - The Court of Appeal has held in Hainsworth v Ministry of Defence that to claim reasonable adjustments, the claimant themself must have the disability: Discrimination by association>Does not apply to reasonable adjustments or discrimination arising from disability. So the duty does give a (non-disabled) employee a right to adjustments to help them care for a disabled child etc.
(But again a carer may have a claim for indirect sex discrimination, and could request flexible working.)
A claimant may well try to rely on this EU case to expand that position. However, I find it difficult to see how they would be successful in Great Britain, given the abolition of the supremacy of EU law from the start of 2024, and the wording of the EqA which seems inconsistent with Bervidi.
Northern Ireland
Even after Brexit, the Windsor Framework requires that Northern Ireland discrimination law should continue to comply with the EU Framework Employment Directive. Brexit: disability discrimination in Northern Ireland.
So Northern Ireland may well need to give effect to this EU court decision, in an employment context. Whether the courts there will feel they can do it themselves, or whether the Disability Discrimination Act 1995 there will be amended, remains to be seen.
