The Advocate General supported the claimant’s view that the Framework Employment Directive covers employees who, though not themselves disabled, are treated less favourably or harassed on the ground of their association with a disabled person.
European Court of Justice, 2008. Full Advocate General Opinion: bailii.org.
See Coleman v Attridge Law main page for the final decision of the European Court. This page outlines the Advocate General’s Opinion, which precedes the court decision and is influential but not final.
Fundamental principle of equality
The Advocate General commented that equality is not merely a political ideal and aspiration but one of the fundamental principles of European Community law. The values underlying equality are human dignity and personal autonomy:
- At its bare minimum, human dignity entails the recognition of the equal worth of every individual. One’s life is valuable by virtue of the mere fact that one is human, and no life is more or less valuable than another.
- A relevant, but different, value is that of personal autonomy. It dictates that individuals should be able to design and conduct the course of their lives through a succession of choices among different valuable options. It presupposes that people are given a range of valuable options from which to choose.
The aim of Article 13 of the European Community Treaty (on which the Directive is based) and the Directive itself is to protect the dignity and autonomy of those within the listed classifications, eg sex, race, disability. The most obvious way in which the person’s dignity and autonomy may be affected is when they are directly targeted because they have one of these characteristics:
“Treating someone less well on the basis of reasons such as religious belief, age, disability and sexual orientation undermines this special and unique value that people have by virtue of being human. Recognising the equal worth of every human being means that we should be blind to considerations of this type when we impose a burden on someone or deprive someone of a benefit. Put differently, these are characteristics which should not play any role in any assessment as to whether it is right or not to treat someone less favourably.
“Similarly, a commitment to autonomy means that people must not be deprived of valuable options in areas of fundamental importance for their lives by reference to [these] classifications. Access to employment and professional development are of fundamental significance for every individual, not merely as a means of earning one’s living but also as an important way of self-fulfilment and realisation of one’s potential. The discriminator who discriminates against an individual belonging to a suspect classification unjustly deprives her of valuable options. As a consequence, that person’s ability to lead an autonomous life is seriously compromised since an important aspect of her life is shaped not by her own choices but by the prejudice of someone else…”
However, another way of undermining the dignity and autonomy of those who belong to a certain group is to target others who are closely associated with them. A robust conception of equality entails that these subtler forms of discrimination should also be caught. The dignity of the person with a listed characteristic is affected as much by being directly discriminated against as it is by seeing someone else suffer discrimination merely by virtue of being associated with him. Furthermore, this subtler form of discrimination undermines their ability to exercise autonomy, for example as to marriage if the person they marry may be subject to discrimination because of that, or where there is liable to be discrimination against an individual on whom they perhaps rely for help in their effort to lead a life according to the fundamental choices they have made.
The Community legislature adopted the Directive to protect the relevant groups of people and ensure their dignity and autonomy is not compromised either by obvious and immediate or subtle and less obvious discrimination.
The Directive says that its purpose is to lay down a general framework for combating discrimination “on the grounds” of religion or belief, disability, age or sexual orientation. Not all discrimination is wrong. In the context of employment, for instance, it is perfectly acceptable for an employer to hire a candidate who is responsible, trustworthy and polite – and exclude candidates who are irresponsible, untrustworthy and rude. What determines whether or not the employer’s conduct is acceptable is the ground of discrimination he is relying on. In a sense, the Directive performs an exclusionary function: it excludes religious belief, age, disability and sexual orientation from the range of permissible reasons on which an employer may legitimately rely to treat one employee less favourably than another.
The Directive prohibits direct discrimination, harassment, and indirect discrimination:
- In the case of direct discrimination and harassment, the discriminator relies on one of the listed classifications in order to act in a certain way. It is an essential premise of his reasoning.
- In indirect discrimination cases, by contrast, even neutral, innocent or good faith measures adopted with no discriminatory intent will be caught if their impact on people who have the particular characteristic is greater than their impact on others. The prohibition of such discrimination ties in with the obligation of employers to accommodate those groups by adopting measures and designing their policies in a way that does not impose a burden on them which is excessive compared with that imposed on other people.
So while the prohibition of direct discrimination and harassment operates as an exclusionary mechanism (by excluding from an employer’s reasoning reliance on certain grounds) the prohibition of indirect discrimination operates as an inclusionary mechanism (by obliging employers to take into account and accommodate the needs of individuals with certain characteristics).
Therefore, even if the European Court were to accept the argument of the United Kingdom Government that discrimination by association is clearly not covered by indirect discrimination, that does not in any way mean it also falls outside the scope of the prohibition of direct discrimination and harassment. On the contrary, including discrimination by association within the scope of direct discrimination and harassment is the natural consequence of the exclusionary mechanism through which the prohibition of this type of discrimination operates.
The claimant’s case here is one of direct discrimination. She is not complaining of the impact a neutral measure, but rather that she was singled out and targeted by her employer precisely because of her disabled son. As stated, the effect of the Directive is that it is impermissible for an employer to rely on religion, age, disability and sexual orientation in order to treat some employees less well than others. To do so would amount to subjecting these individuals to unjust treatment and failing to respect their dignity and autonomy. This fact does not change in cases where the employee who is the object of discrimination is not disabled herself. The ground for the discrimination is still disability. Therefore, if the claimant can prove that she was treated less favourably because of her son’s disability she should be able to rely on the Directive.
The Advocate General also rejected an argument by the United Kingdom Government to the effect that the Directive was adopted with a view only to setting minimum standards, especially since the Council was acting in an area where competence remains largely within the power of the Member States. As a consequence, argued the UK Government, it was an issue for the Member States to decide whether or not to prohibit discrimination by association in the field of employment and occupation. The Advocate General disagreed:
- First, the fact that the Community has a limited competence in the field of fundamental rights does not mean that when it decides to exercise that competence it can provide only minimum standards of fundamental rights protection.
- Second, there is nothing in the Directive or its recitals indicating that such was the intention of the Council.
- In a footnote he added a further argument against the UK Government position – given that equal treatment obligations may involve some costs for employers, different equal treatment obligations imposed in different EU countries may distort competition and create an uneven playing field in Europe.
The Advocate General therefore recommended that the European Court should answer the question of the UK Employment Tribunal by saying that the Framework Employment Directive protects people who, although not themselves disabled, suffer direct discrimination and/or harassment in the field of employment and occupation because they are associated with a disabled person.