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 (on ECJ website).
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 disputes these allegations, but argued that even if they were true she would have no claim because the DDA only covers 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 – and the Employment Appeal Tribunal (2006, bailii.org) agreed – that if the directive does extend to claims by people associated with the disabled person, the DDA is 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: 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 should apply 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.
The European Court decision only affects employment and related areas falling within the Framework Employment Directive. For example, it would not extend to provision of goods and services, apart from employment services.
What about reasonable adjustments and indirect discrimination?
The court accepted that only a disabled person has a right to claim a reasonable adjustment with Article 5 of the directive – though see next paragraph.
The court did not address whether ‘indirect discrimination’ under Art 2(2)(b) of the directive can be by association with a disabled person. The wording of that provision (“persons…having a particular disability”, rather than just ‘on the grounds of’ or ‘related to’ disability) cannot be so straightforwardly interpreted to include discrimination by association as can the provisions the court was looking at. On the other hand, the Advocate General seemed to leave it very much open whether indirect discrimination can include discrimination by association. If it can, the result might be not a million miles from providing a reasonable adjustment duty. However, that is very much an issue for another day. This decision was limited to direct discrimination and harassment.
So, for example, this decision does not give a right to reasonable flexible working to care for a disabled child/person. However, it means it is illegal for an employer to be less flexible with a parent because her child is disabled, compared with what he would allow to parents of non-disabled children.
Re-interpreting and/or amending the DDA
The Equality Act 2010 implemented the Coleman decision by including wider wording which extends protection against direct discrimination and harassment to those who are associated with someone who is disabled: see Discrimination by association.
As to the position before October 2010, the wording of the Disability Discrimination Act (DDA) before was inconsistent with the Coleman decision. Even so a later Employment Appeal Tribunal case ‘re-interpreted’ the DDA to be consistent with Coleman – see below Before Equality Act 2010 – re-interpreting the DDA to cover discrimination by association.
Relevance to stammering?
Before Equality Act 2010 – 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 – October 2009 EAT decision on Coleman (link to bailii.org). This means 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. 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.
The employer initially sought to appeal the EAT decision to the Court of Appeal. However, it was reported in April 2010 that the case has then settled out of court, with an undisclosed sum being paid to the claimant.
- EHRC News Release (17/7/08): Britain’s six million carers get new rights after mother’s legal victory in Europe (on EHRC website);
- Guardian article (18/7/08): Carer brings hope to millions with landmark win on employment rights (on Guardian website);
- Full European Court of Justice judgment (on ECJ website)