EBR Attridge Law LLP v Coleman EAT/0071/09

disability discrimination | association with a disabled person

The Employment Appeal Tribunal (EAT) has held that employment tribunals can hear claims under the Disability Discrimination Act 1995 in relation to association with a disabled person.

Ms Coleman brought a claim for disability discrimination on the basis that she had been discriminated against because she is the primary carer for her disabled son. Her allegations of discriminatory treatment included a refusal to allow her to return to her existing job after coming back from maternity leave; the suggestion that she was "lazy" when she sought to take time off to care for her son; a refusal to give her the same flexible working arrangements as her colleagues with non-disabled children; and an allegation that she was using her child to manipulate her working conditions.

The employment tribunal referred to the European Court of Justice (ECJ) the question of whether or not the Framework Employment Directive (2000/78/EC) covers discrimination by association. The ECJ said that the ban on direct discrimination in the Framework Employment Directive is not limited to individuals who are themselves disabled. The same is true of the prohibition on harassment. On the return of the case to the employment tribunal, it was found at a pre-hearing review that the Disability Discrimination Act 1995 (Amendment) Regulations 2003, which came into effect on 1 October 2004, were intended to give effect to the Framework Employment Directive. The fact that the Disability Discrimination Act 1995 does not refer specifically to associative discrimination is insufficient to amount to an unambiguous indication that it was not intended to cover such discrimination. The tribunal was therefore satisfied that the Disability Discrimination Act 1995 could be interpreted to cover associative discrimination, without distorting the meaning of the legislation. The claim could therefore proceed to a full hearing in relation to matters taking place on or after 1 October 2004.

The EAT agreed with the employment tribunal. It relied on the House of Lords decision in Ghaidan v Godin-Mendoza [2004] 2 AC 557 HL that UK legislation should "so far as possible" be interpreted to give effect to EU law, without being "inconsistent with the scheme of the legislation or its general principles". While the interpretation of the Disability Discrimination Act 1995 to cover associative discrimination is an extension of the scope of the legislation, it is in no sense "repugnant" to it. The concept of discrimination "on the ground of disability" remains central. The EAT also noted that other UK discrimination legislation, as construed by the courts without reference to EU law, already outlaws associative discrimination.

The EAT went on to suggest how the Disability Discrimination Act 1995 might be redrafted to give effect to its reasoning. It suggested, among other changes, the addition of a new sub-section (5A) to s.3A:

"(5A) A person also directly discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person."

And the EAT also suggested a new sub-section (3) in s.3B:

"(3) A person also subjects a person (A) to harassment where, for a reason which relates to the disability of another person (B), he engages in unwanted conduct which has the purpose or effect of:

(a) violating A's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Sub-section (2) applies to this sub-section, save that the relevant perception is that of A."

The EAT noted that it had deliberately avoided using the phrase "associative discrimination" in the rewording. Although it is convenient shorthand for the concept, it may in practice be uncommon for an individual to be discriminated against on the ground of the disability of anyone with whom he or she is not in some sense “associated”. In addition the EAT did not want to encourage tribunals to become bogged down in discussions of what does or does not amount to an “association”, when that should not be the focus of the enquiry.

Case transcript of EBR Attridge Law LLP v Coleman (Microsoft Word format, 135K) (on the EAT website)

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