The European Court has decided that ‘discrimination by association’ can be illegal in the workplace. Direct discrimination and harassment are prohibited even if they are not against the disabled person him- or herself. Thus an employee had a claim if she was discriminated against or harassed because of her child’s disability.
European Court of Justice, July 2008. Full ECJ judgment: bailii.org.
Facts and decision
A mother alleged that she was discriminated against and harassed at work because of the disability of her child. She said, for example, that she was refused the same flexibility of working hours as colleagues who were parents of non-disabled children, and that abusive and insulting comments were made about both her and her child whereas no such comments were made when other employees had to ask for time off or a degree of flexibility in order to look after non-disabled children.
The employer disputed these allegations, but argued that even if they were true she would have no claim because the Disability Discrimination Act 1995 (DDA) only covered discrimination and harassment against the disabled person himself. The employee countered that the European Framework Employment Directive, with which the DDA is required to comply, is not limited in that way. She also argued that if the directive does extend to claims by people associated with the disabled person, the DDA was capable of being interpreted so as to include these claims, without distorting the words of the statute.
The case was referred to the European Court of Justice as to whether or not the Framework Employment Directive includes discrimination against – or harassment of – someone other than the disabled person, such as the disabled person’s mother.
The Advocate General’s Opinion, which is influential but not final, supported the employee’s view that the Directive includes claims by others, as regards direct discrimination and harassment.
Held by European Court of Justice (ECJ): the prohibition of direct discrimination is not limited to people who are themselves disabled. It also includes less favourable treatment of an employee based on the disability of his child, whose care is provided primarily by the employee. Similarly, the directive’s prohibition of harassment of an employee includes unwanted conduct amounting to harassment which is related to the disability of his child, whose care is provided primarily by the employee.
In the ECJ’s view, the purpose of the directive is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the directive applies not to a particular category of person but by reference to the grounds mentioned in Article 1, which include disability.
The ECJ accepted that the directive includes a number of provisions, such as Article 5 giving rights to reasonable accommodation, which are worded to apply only to disabled people. However, the court considered that the existence of these provisions does not mean that the principle of equal treatment in the directive must itself be interpreted strictly, so as to relate only to disabled people. Also, recital 6 of the directive referred both to the general combating of every form of discrimination, and to the need to take appropriate action for the social and economic integration of disabled people. Presumably the court’s point here was that discrimination or harassment against someone associated with a disabled person can also hinder that person’s integration.
Applies to direct discrimination and harassment
The actual ruling of the court is in fairly limited terms, namely where the disability is that of a child whose care is provided primarily by the employee. However the Opinion of the Advocate General, as well as the reasoning of the court itself, give strong grounds for saying that the same applies more generally to;
- less favourable treatment of an employee ‘on the grounds’ of a disability (Art 2(2)(a) of the directive) ie direct discrimination, or
- harassment ‘related to’ disability (Art 2(3) of the directive),
even though the disability is someone else’s.
Does it apply beyond employment?
The European Court decision only affected employment and related areas falling within the Framework Employment Directive. However the Equality Act 2010 has since extended the decision to apply more generally, for example to provision services and education. See my page on Discrimination by association.
What about reasonable adjustments and indirect discrimination?
The UK courts have since held that the Coleman decision does not apply to the reasonable adjustment duty. See further my page on Discrimination by association.
However the EU court in CHEZ, 2015, has held that discrimination by association applies to indirect race discrimination, which may well mean it also applies to indirect disability discrimination.
Re-interpreting and/or amending the DDA
Before October 2010 (when the Equality Act took effect, see below), the relevant British legislation was the DDA. The wording of DDA was inconsistent with the Coleman decision. Even so a later Employment Appeal Tribunal case ‘re-interpreted’ the DDA so as to be consistent with Coleman – see below Re-interpreting the DDA to cover discrimination by association.
Equality Act 2010
The Equality Act 2010, in force since October 2010, includes wider wording consistent with the ruling in Coleman that as regards direct discrimination and harassment it may be someone other than the claimant who has the disability.
The EU court decision in Coleman only applied to employment and related areas falling within the Framework Employment Directive. However the Equality Act 2010 extended the decision to apply more generally, for example to provision of services and to education.
For more on the current position, see my page on Discrimination by association.
Relevance to stammering?
Re-interpreting the DDA to cover discrimination by association
The situation before October 2010 was not satisfactory in that a person reading the wording of the DDA would think that discrimination by association was not covered. However the Employment Appeal Tribunal held that even before Equality Act 2010 (see above), UK law must be interpreted so as to implement the Coleman decision. Accordingly claimants could rely on direct discrimination or harassment by association in employment cases without waiting for the statute to be changed.
The problem was that on a literal reading, the DDA was limited to discrimination against, or harassment of, the disabled person. The wording did not cover discrimination because of someone else’s disability. However, UK tribunals must interpret UK legislation ‘so far as possible’ to comply with the Framework Employment Directive, and the directive requires discrimination by association to be covered. Was it ‘possible’ to interpret the DDA to cover it? The Employment Appeal Tribunal (EAT) said yes it is – EAT decision on Coleman, October 2009 (link to bailii.org). This meant that under UK law even before changes in the Equality Act 2010, direct discrimination and harassment were prohibited even if they were not against the disabled person himself.
In considering whether the DDA could be re-interpreted, the EAT looked at the previous authorities, and said that even if the DDA was clear, wording could 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.
Consider whether disability is the reason, not whether there is ‘association’
The EAT decision in Coleman, 2009 (bailii.org) suggested wording that the courts might read into the DDA 1995 to implement the EU court’s decision. The EAT said the test was whether the claimant was treated less favourably by reason of the disability of another person (since the Equality Act we would say ‘because of’ the disability), or harrassed for a reason which relates to the disability of another person. Tribunals did not need to consider whether there was an ‘association’ between the claimant and the person with the disability. The EAT explained this by saying:
“16. I appreciate that my formulation does not use the language of “association”. Although the phrase “associative discrimination” is a convenient shorthand, on my reading of the decision of the [EU] Court of Justice the concept of association is not central to its reasoning. What matters is that the putative victim has suffered adverse treatment on a proscribed “ground”, namely disability, and the fact that the disability is not his own is not of the essence: see para 50 of the judgment … In practice it may be uncommon for an employee to be discriminated against on the ground of the disability of anyone with whom he is not in some sense “associated”, indeed closely associated, but the fact of such association is not necessary to the unlawfulness; and I should prefer to avoid language which encourages tribunals to become bogged down in discussion of what does or does not amount to an “association”, when that should not be the focus of the inquiry. (I should also note that I have used the phrase “by reason” that rather than “on the ground of” purely because it reads less clumsily: the two phrases are interchangeable in this field: see Nagarajan v London Regional Transport …)”
EBR Attridge Law v Coleman (bailii.org), EAT, 2009.
- Guardian article (18/7/08): Carer brings hope to millions with landmark win on employment rights (theguardian.com).