Discrimination is discrimination

The European Court of Justice (ECJ) recently clarified the scope of the European Equal Treatment Framework Directive ("the directive") in its landmark decision in the case of Coleman v Attridge Law.

Adopted in November 2000, the directive combats discrimination in the workplace on grounds of religion or belief, disability, age or sexual orientation.

In this case, Ms Coleman, who worked as a legal secretary for Attridge Law, a firm of solicitors, claimed direct disability discrimination and harassment on grounds of the disability of her son. Ms Coleman herself was not disabled but she was her son’s primary carer. She claimed that on her return from maternity leave, she had been treated in a way parents of non-disabled children would not have been, in that she had not been allowed to return to her existing job, had less flexibility with regard to her working hours, and had been subjected to insulting comments about her and her son.

The hurdle for Ms Coleman was that the Disability Discrimination Act 1995 ("DDA") refers to less favourable treatment "for a reason related to the disabled person's disability", so it was not clear whether she could bring her claim at all. A referral was made to the ECJ in light of the directive, which protects against discrimination "on the grounds of" discrimination and is therefore wider than the DDA, to determine whether the directive protects not only disabled people from discrimination but also employees associated with a disabled person.

The ECJ agreed with the Advocate General's opinion on this case, given earlier this year, and confirmed that the directive is intended to prohibit direct discrimination and harassment on grounds of disability, even where the person concerned is not disabled themselves, i.e. discrimination "by association".

The issue now is that the ECJ decision is likely to have implications for discrimination law in the UK and not just disability discrimination law. The directive applies also to sexual orientation, religion or belief and age and in light of this decision, direct discrimination by association in those other areas should also be prohibited. Whilst direct discrimination and harassment "by association" in relation to sexual orientation and religion or belief are, in effect, already provided for in UK legislation, the Employment Equality (Age) Regulations 2006 only provide for harassment by association. As drafted, any direct age discrimination must be in respect of the claimant's age only.

Many employees will be affected by this decision as it is estimated that over 2,000,000 workers in the UK are unpaid carers. Employers need to consider carefully what amendments are needed to their policies to prevent discrimination by association. For example, parents of young and disabled children and carers of adults already have a right to request flexible working, but this ruling arguably gives more backing to a carer who may decide to challenge an employer’s working conditions. In addition, employers may wish to examine equal opportunities policies and ensure compliance against discrimination by association in terms of age, sexual orientation, religion and on racial grounds.

It should be noted, however, that this decision does not mean all employees can immediately claim disability discrimination by association. Public sector employees will benefit immediately from the ECJ decision, as EU directives can have "direct effect" for public authority workers. However, the impact on private sector employees will depend on when Parliament amends the DDA.

Until that time, employers will have some breathing space to consider the implications of the ECJ decision, although the fact is that discrimination by association will sooner or later become illegal in the UK.

As regards Ms Coleman's case, as her employer was not a public body, the next stage will be to ascertain whether the DDA can be read so as to comply with the intent of the directive which it is supposed to implement. In any event, in light of the ECJ's ruling, the UK Government is likely to amend the DDA (and the Employment (Equality) Age Regulations), to bring them in line with the directive.