Disability Discrimination by association
The Employment Appeal Tribunal(“EAT”) recently gave its decision in Coleman v Attridge Law, and upheld Mrs. Coleman's claim that she was discriminated against by her employers because she had a disabled son, even though she was not disabled herself. The discrimination “by association” claim was upheld on the interpretation of the Disability Discrimination Act 1995 (“DDA.)
Mrs S Coleman was a legal secretary for solicitors Attridge Law. A year or so after starting with the solicitors she gave birth to a son: he suffers from serious respiratory problems. She was her son's main carer. Three years after the birth she accepted voluntary redundancy. She then claimed that she had been treated less favourably than other staff because of her disabled child and that it was that treatment that led to the termination of employment. She also claimed that after maternity leave she was not allowed to return to her existing job, that she was not allowed the same flexibility as other employees who had non-disabled children, and that abusive and insulting comments were made about her and her child.
Originally the case went to the European Court of Justice which effectively said that European Law did allow for discrimination by association. It came back to the employment tribunal who then interpreted the DDA in the light of that decision. It found that Mrs Coleman was discriminated against by association under UK law. As the DDA does not contain express words providing for this associative discrimination the Tribunal achieved the purpose of the European law by importing words into the DDA in order to render it compliant with European law.
So, off the parties went to the EAT to test the bold approach of the Tribunal. Basically, the EAT reached the same conclusion but in a slightly different way and by importing different provisions in to the legislation. It went o to say that there is nothing impossible about adding words to the 1995 Act - even though it is not something that has historically been done on any scale such as this. This is important from a jurisprudential point of view but also as a mark of approach taken by judges in giving effect to the overall intent, as well as the actual statute, of discrimination law. Without the DDA being seen against the European landscape this would not be possible. In practice, it may be a decision of no long-term importance as the words of the statute are likely to be changed to reflect the decision if the Equality Bill becomes law next year.
However, the case gives added protection for not only parents of disabled children who already enjoy the right to request flexible working if they have children under 18 years old but also carers of the disabled as well. Employers always need to consider requests for flexible working very carefully but particularly so in the light of this decision.
