In a decision which could have major repercussions for other forms of discrimination legislation, a preliminary decision from the European Court of Justice has said discrimination by association is prohibited under the Disability Discrimination Act 1995 (“DDA”).

The case involves Ms Coleman, who though not disabled herself is the primary carer for her disabled son. When she requested time off from work to care for him, her employer was unsympathetic and accused her of manipulating her working conditions. Ms Coleman brought a claim under the DDA, arguing discrimination by association with her son’s disability, which went to an Employment Tribunal.

A literal reading of the DDA would not cover such a claim but the Directive itself arguably suggested that such discrimination should be covered. Therefore an employment tribunal referred the case to the European Court of Justice (ECJ) for a preliminary ruling in relation to the EC Equal Treatment Framework Directive.

The Advocate General found that discrimination by association is prohibited by the Directive as it is not permissible for an employer to treat employees less well than others as this would be subjecting individuals to unjust treatment and would fail to respect both their dignity and autonomy.

The opinion is not binding on the ECJ, who rule on this later in the year. However, if they endorse it then an employment tribunal will decide whether the DDA can be read in line with the Directive, thus protecting people like Ms Coleman. If it cannot be interpreted in this way it is likely that the DDA will be amended to include discrimination by association.

The final decision could have far-reaching implications for parents and carers of disabled children in the workplace, and result in possible changes to age and sex discrimination as a result. We will keep you updated on this case as it progresses.

© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at February 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.