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Discrimination by association

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Last updated 14th June 2014.

The European Court of Justice has 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. This has been implemented in Equality Act 2010.

European court ruling, and Equality Act 2010

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. Accordingly direct discrimination and harassment are prohibited even if they are not against the disabled person himself.

The mother of a disabled child could claim for discrimination if her employer treated her less favourably – or harassed her – because of the child’s disability.
These were the facts alleged in Coleman v EBR Attridge Law.

Before Equality Act 2010, tribunals held that the DDA could be reinterpreted to comply with the European decision. However, from 1st October 2010 discrimination by association is now in any event illegal under the wording of the Equality Act 2010.

From the Employment Code, para 3.19:
A lone father caring for a disabled son has to take time off work whenever his son is sick or has medical appointments. The employer appears to resent the fact that the worker needs to care for his son and eventually dismisses him. The dismissal may amount to direct disability discrimination against the worker by association with his son.

The Coleman case and the Directive only apply in areas related to employment. However, the Equality Act extends the same rule to other areas such as provision of services and education. Harriet Harman commented that this “is in keeping with the aims of the Equality Bill to simplify and strengthen the law” (full written statement by Harriet Harman (link to Hansard).

Only direct discrimination and harassment

The Coleman ruling, and the related wording in the Equality Act, only apply to direct discrimination and harassment, not to reasonable adjustments or ‘discrimination arising from disability’. This is mainly because of the way the EqA and directive are worded.

Hainsworth v Ministry of Defence (link to bailii.org), 2014, Court of Appeal
The claimant was a civilian worker with the army based in Paderborn, Germany. She asked for a transfer to the UK where there would be educational and training facilties for her daughter who had Downs syndrome. This was refused and she claimed breach of the duty to make reasonable adjustments, as her daughter was disabled. The Court of Appeal rejected her claim. The reasonable adjustments duty only applied where the worker was disabled, not someone associated with them. This was supported by the wording of the EqA and the Framework Employment Directive, and by the ECJ decision in Coleman v EBR Attridge Law. The court also rejected an argument that the position was now different in the light of the UN Convention on Rights of Disabled People.
Note: it remains to be seen whether the ECJ will take a different view on whether the UN Convention has altered the position, if and when the case gets to the ECJ.

Outside of the Equality Act, however there is a right to request flexible working (link to gov.uk). Also failure to allow flexibility for a woman to care for a child can potentially be indirect sex discrimination contrary to the Equality Act.

In April 2009, the House of Commons Work and Pensions Committee considered that carers should be given a right to reasonable adjustments under the Equality Bill (para 53-61 of their Report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk), and that carers should also be covered by the equality duty on public authorities (para 213). However, this has not been implemented.

Examples of cases in Britain

Some cases where the claim succeeded, following the Coleman ruling…

MacDonald v Fylde Motor Co Ltd [2011] EqLR 660. Employment Tribunal
The claimant was a vehicle recovery driver, and said he had to stop doing overtime after 5:30pm, in order to care for his disabled stepfather. The claimant was dismissed partly because of his refusal to do overtime. The tribunal held that the burden of proof had shifted to the employer, who had failed to show that it would have done the same with an employee who needed to leave at 5:30pm for an evening class, or to collect a child from the nursery, for example. Accordingly there was unlawful direct discrimination under the DDA on grounds of the stepfather’s disability. The tribunal also found there to be unlawful harassment related to the disability.

Price v Action-Tec Services, [2013] EqLR 429, Employment Tribunal
A telesales executive had just passed her trial period, but was then dismissed after an absence from work related to her husband’s leukemia. The tribunal said the employer made a stereotypical assumption that, because of the disabilities of (herself and) her husband, the claimant would be an unreliable and under-performing employee. Accordingly there was direct discrimination.
More detail on this case: see Stereotypes and assumptions.
Disability discrimination by association (link to thehrdirector.com).

…and one in which the claim failed:

Perrot v Department for Work and Pensions [2012] EqLR 90. Employment Tribunal
The claimant had taken special unpaid leave to look after a disabled sister. Under the employer’s policy, holiday entitlement did not accrue during this leave. The claimant argued direct discrimination under the DDA, saying that in not accruing holiday entitlement he had been treated less favourably on the ground of his sister’s disability. The claim was held to be out of time, but the tribunal said it would have failed anyway. Other employees taking this leave to care for non-disabled people such as children or elderly parents would also not accrue holiday entitlement. The claimant had not sufffered any less favourable treatment.

These cases illustrate that associative discrimination does not include a right to reasonable adjustments, eg to care for a disabled person. For direct discrimination, there needs to be less favourable treatment compared with a situation where there is no disability.

Relevance to stammering?

How important for stammering is discrimination by association? Perhaps not very. However, the decision should 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 might be more relevant to stammering is the related issue of discrimination or harassment due to ‘perceived’ disability.

Going wider than discrimination by association

Codes of Practice

The Employment Code of Practice at paragraph 3.20 gives further examples of where less favourable treatment could be ‘because of’ disability:

“Direct discrimination because of a protected characteristic could also occur if a worker is treated less favourably because they campaigned to help someone with a particular protected characteristic or refused to act in a way that would disadvantage a person or people who have (or whom the employer believes to have) the characteristic. The provisions of the Act on instructing, causing or inducing discrimination may also be relevant here (see paragraphs 9.16 to 9.24).”

An employer does not short-list an internal applicant for a job because the applicant – who is not disabled himself – has helped to set up an informal staff network for disabled workers. This could amount to less favourable treatment because of disability.

Employment Code of Practice at paragraph 3.20.

The Services Code has a similar statement – and examples on services/associations – at para 4.19. Similarly para 4.19 of the Technical guidance on further and higher education.

Background and Parliamentary statements

The Equality Act 2010 wording to cover discrimination by association or perception is in more general terms – it talks of discrimination or harassment ‘because of’ or ‘related to’ disability. There were calls, including from the Equality and Human Rights Commission, for the legislation to be clearer in expressly mentioning discrimination by association and perception. The Government rejected an amendment to this effect in the House of Commons Committee (col 251-256, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)). In doing so, the Solicitor General gave examples of instances, going beyond association and perception, that the Government intended the wider wording to cover:

“…The ‘because of’ turn of phrase in clause 13 is broad enough and is intended to be broad enough to cover much more than just cases in which the less favourable treatment is due to the victim’s association with someone who has the characteristic or because the victim is wrongly thought to have that characteristic. The formulation is intended to and does cover cases, for instance, of less favourable treatment because of a refusal to comply with instructions to discriminate. It is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time.

‘Direct discrimination’ has a number of forms – a lot of different forms. Even after the Bill, what the definition covers will continue to evolve through the case law. That is really the point. We do not want, by specifying particular kinds of direct discrimination, to imply that we are excluding kinds of discrimination that might come about in a situation that we have simply not foreseen when setting out the clause. So, we favour what we see as a broad formulation.”

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