Discriminating care: new protection for carers of the disabled
19 September 2008
By Rebecca Lake
Since the introduction of the Disability Discrimination Act 1995 (the "DDA"), UK law has prohibited disability discrimination. The DDA prohibits direct discrimination, indirect discrimination and requires employers to make reasonable adjustments for disabled employees.
Who is protected?
To date it was understood that only individuals who themselves were 'disabled' (as defined in section 1 of the DDA) were protected by the DDA. However, the European Court of Justice (ECJ) has recently decided in the case of Coleman v Attridge Law [2008] IRLR 722, that protection against disability discrimination should be extended also to people associated with disabled individuals - in this case an employee who is the primary carer for her disabled child.
The facts
Mrs Coleman was a legal secretary employed by an English law firm and was the primary carer for her disabled son. She had been employed since 2001 and had taken a period of maternity leave. On her return to work Mrs Coleman complained that she had suffered less favourable treatment than other employees, as a result of her son's disability. Mrs Coleman eventually accepted an offer of voluntary redundancy and brought a claim in the employment tribunal for constructive unfair dismissal and disability discrimination.
Mrs Coleman's treatment
Mrs Coleman argued that she had been treated less favourably on the grounds of her son's disability than employees who were parents of non-disabled children. She alleged her employer refused to allow her to return to her previous job, in circumstances where the parents of non-disabled children would have been allowed to take up their previous jobs. She also alleged that her employer refused her flexible working requests about working hours and conditions but did not do so for parents of non-disabled children. She alleged she was described as 'lazy' when she requested time off to care for her son, whereas parents of non-disabled children were allowed time off, and that her employer failed to deal with a subsequent grievance adequately. Finally, she alleged that when she had arrived late to work due to problems with her son's care, she had been threatened with dismissal when no such threat was made to employees of non-disabled children who were late for similar reasons.
Preliminary question to the ECJ
The case first appeared before the London South Employment Tribunal which was unable to ascertain whether the DDA prohibited discrimination by an employer on the grounds of the disability of someone other than the employee. It sent a number of questions to the ECJ asking for clarification on the scope of the Equal Treatment Framework Directive (the "Directive"), from which the DDA is derived.
The essential question asked was: did the Directive prohibit only direct discrimination in respect of employees who are disabled or did it also prohibit discrimination against individuals who are not themselves disabled but who are treated less favourably as a result of the disability of their child for whom they are the primary carer?
The ECJ judgment
This was the first time the ECJ has addressed the notion of so-called discrimination by association. In its judgment, the ECJ reminded member states that the principles of equal treatment should not be limited to those individuals who themselves have a qualifying disability. It stated that the purpose of the Directive is to combat all forms of discrimination on the grounds of disability, whether it is the employee discriminated against who is disabled or not.
Conflicting provisions of the Directive
The Governments of the Netherlands, Italy and the United Kingdom argued that the Directive could not cover discrimination by association. They argued that the Directive contained clear provisions which could only cover disabled individuals.
These articles contain either specific provisions of positive discrimination in favour of disabled people (that would not be applicable to carers of disabled people) or would be disproportionate if applied indiscriminately to people other than those who were directly disabled themselves.
The ECJ agreed with this analysis but found that this was no bar to the extension of the Directive's protection.
Definition of disability
The ECJ noted that its previous definition of disability did not foresee discrimination by association, but it did not preclude it either. Discrimination by association was within the Directive's objectives and was necessary to ensure a level playing field in employment.
The ECJ found that, in a case of Mrs Coleman's type, disability remained the ground for discrimination. Therefore, where it is established that an employee suffers discrimination on the grounds of disability, interpretation of the Directive limiting its application only to people who are themselves disabled would be to deprive the Directive of an important element of its effectiveness and reduce the protection which it is designed to provide.
The next step
The case will now be remitted back to the London Central Employment Tribunal. It must now interpret the DDA to include this new protection to individuals associated with disabled children, for whom they are primary carer. If it is not possible for the tribunal to interpret the DDA in this way the UK Government may be required to amend the DDA to introduce this protection.
Consequences for employers
The case of Coleman highlights the importance of treating employees equally wherever possible to avoid claims for discrimination, even where the employee does not appear to fall in one of the protected categories.
Although at present this case extends protection against disability discrimination only to employees who are primary carers of their own disabled children, there is every chance that this principle could be widened to include any carer of a disabled individual.
Amongst her complaints Mrs Coleman alleged that she was treated differently from other employees in relation to her request for flexible working, her return from maternity leave, her attendance and her requests for time off to care for her son.
These are all matters on which the employer should have consistent policies and procedures which should be applied equally to all employees.
This case highlights the importance of consultation and communication with employees before making any decisions, particularly in relation to disciplinary action or termination of employment, and again ensuring that any sanction imposed is consistent with treatment applied to other employees. When in doubt legal advice should be sought prior to any decision being taken or communicated to the employee.
This article was first published in Legal Insight September 2008.
© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at September 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.
