Like Halley’s comet, the trail of which is visible from the heavens, the trail of the case of Coleman v Atridge Law has been visible in the sky above employment law for some time as it has made its way through the courts.
While the case is not finished for Mrs Coleman, the recent decision of the European Court of Justice has presented a judgment which, likely any newly arrived comet, will be keenly examined.
Mrs Coleman brought a claim for constructive dismissal, direct disability discrimination and harassment against her former employer on the grounds of disability. The claims for direct discrimination arose from her redundancy, which she said was less favourable treatment on the grounds of disability. Her claim for harassment arose from comments made about disability also. But she herself was not disabled. Mrs Coleman has a disabled son for whom she is the principle carer. Her claims for direct discrimination and harassment were based on allegations that her treatment was on the grounds of her son’s disability and her association with him i.e. discrimination by association with her disabled son.
The Disability Discrimination Act is intended to implement part of the European Union’s framework directive on equal treatment. This outlaws discrimination in a number of fields including disability. The other areas covered by the directive relate to religion and belief, sexual orientation and age.
The question for the European Court of Justice was whether the directive is intended to protect not merely those who are themselves disabled, but those who are discriminated against because of their association with someone who is disabled. The answer came back that the directive is indeed intended to protect not only the disabled, but also those who suffer discrimination or harassment by reason of their association with a disabled person.
The ECJ pointed out that the directive seeks to combat all forms of discrimination and that includes, where the discrimination is as per Mrs Coleman’s case, connected with the disability of another person such as her son.
As with many ground-breaking judgments, it will be some time before the full implications of this case are worked out. Whilst the ECJ has indicated that the concept of associative discrimination exists, how far this extends will have to be determined through further case law. The ECJ at the moment has said it exists where the discrimination is based on the disability of the object of the carer, but it also pointed out that the directive covered all forms of discrimination protected by the framework directive. For example; if someone were to be discriminated against not because of their own religion or believe but because of the religion of someone with whom they were associated, such a person could bring a claim for discrimination on the grounds of relgion.
Mrs Coleman has not, however won her case. The EAT had referred her case to the ECJ to decide on the preliminary question of whether or not the framework directive covers discrimination by association. If it does, as was found in this case, the case must now return to the tribunal to determine whether or not the Disability Discrimination Act (DDA) can be interpreted so as to cover discrimination by association. If the tribunal determines that it can not be so interpreted, our existing national law will prevail and Mrs Coleman will lose her claim. It will then fall to the government to amend the DDA so that it accords with the framework directive.
The position is different for employers in the public sector. Directives are directly effectively against the government and emanations of the government where they are sufficiently clear. Therefore, those in the public sector are likely to obtain an immediate benefit from this ECJ judgment.
This decision is likely to have a significant impact on employers as it extends those who can claim protection from disability discrimination as well as discrimination on the grounds of religion and belief and sexual orientation, which are also protected under the framework directive. Probably the broadest impact will be in relation to disability rights and those with caring responsibilities. Carers who can show they have been less favourably treated, or harassed because of their connection with the disabled person for whom they care can now seek to claim that their treatment has been on the grounds of disability discrimination. For example if a carer is refused flexible working to care for a disabled person, any refusal could generate not merely a claim under the flexible work legislation but also under the disability discrimination legislation, with the benefit of unlimited compensation.
For employers the most immediate implications of the Coleman decision are to deal with potential areas of direct discrimination. For this they will need to consider carefully whether any business decisions they make could be regarded as connected to a third party’s protected status. Therefore if an employer knows an employee wants time off to care for their disabled mother or brother, they need to consider this with the same type of care they might devote to such a decision if they were considering reasonable adjustments for a disabled employee.
Another recent decision of the courts may give some respite to employers. In the recent case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm the House of Lords has made it clear that to discriminate against an individual on the grounds of disability it is necessary to be aware of the disability. Therefore it would seem reasonable that an employer would have to have some knowledge or awareness of the employee’s connection with a disabled person in order for a claim of associative discrimination to succeed.
As for harassment, prudent employers should already have training in place to make staff aware of the importance of treating colleagues with dignity at work. Any training should therefore be expanded. Staff need to appreciate that it is not merely inappropriate to harass or embarrass staff on account of their disability or religion, it is also not appropriate to apply the same treatment to staff on the grounds of their association with someone who is disabled or on the ground’s of another person’s sexual orientation. So, for example, if an employee who worked in a strictly Christian environment, and who was a practising Christian themselves were to teased or harassed because of the sexual orientation of their brother, such a person may well succeed in a claim for discrimination on grounds of associative sexual orientation.
As for Mrs Coleman, her case will have to go back to the tribunal for findings to be made on the facts, as this case was referred to the ECJ as a preliminary point.
Clearly this case is one of those few that every now and then lights up the legal firmament and gives rise to a meteoric (thought) shower.
