Disability Discrimination by Association - Complying With EU Law

The Employment Appeal Tribunal (EAT) has handed down a far-reaching judgment in the long-running case of Coleman v Attridge Law, which concerns the interpretation of the EU Equal Treatment Framework Directive and its impact on disability legislation in the UK.

The wording of the Disability Discrimination Act 1995 (DDA), which implements the Directive in the UK, is such that it protects disabled employees but does not appear to afford protection to an employee who is discriminated against because he or she has caring responsibility for a disabled person.

Sharon Coleman contended that she had been discriminated against on the grounds of her son’s disability. She brought proceedings against her employer under the DDA and for unfair dismissal. She claimed that the effect of the Equal Treatment Directive was to outlaw ‘associative discrimination’ and it was open to the Employment Tribunal (ET) to construe the DDA accordingly. The ET referred the question to the European Court of Justice (ECJ), which ruled that the purpose of the Directive, as regards employment, is to combat all forms of discrimination on grounds of disability and that limiting its application to only those people who are themselves disabled would deprive the Directive of an important element of its effectiveness and reduce the protection which it is intended to guarantee. In the ECJ’s view, therefore, where an employer treats a non-disabled employee with caring responsibility for a disabled child less favourably because of the child’s disability, this is contrary to the prohibition of direct discrimination laid down in the Directive. Likewise, the Directive also protects the employee from unwanted conduct amounting to harassment that is related to the disability of the employee’s child.

Following this ruling, the ET Judge ruled that she was obliged to interpret the DDA in such a way as to conform with the effect of the Directive as stated by the ECJ – adding words to the Act if necessary, unless its wording contained ‘an express and unambiguous indication to the contrary’. The ET did therefore have jurisdiction to hear Ms Coleman’s claims of disability discrimination and harassment. Ms Coleman’s employer appealed against this decision.

The EAT dismissed the appeal and ruled that the DDA can be interpreted so as to apply to adverse treatment by reason of the disability of another person. In reaching its decision, the EAT considered the correct interpretation of Section 3 of the Human Rights Act 1998, by which Parliament has decreed that all domestic legislation must be read in a way that is compatible with European Law, typically arising out of a Directive, ‘so far as it is possible to do so’. This has been taken to mean that even if the statutory language is not ambiguous, Section 3 may sometimes require that the legislation be given a different meaning in order to conform with Community law. Although this may look like amending the legislation, that is not the case. Provided that any added words are ‘compatible with the underlying thrust of the legislation’, this does not cross the boundary between interpretation and amendment.

In this case, to give effect to the ECJ’s decision, Mr Justice Underhill would add words to Section 3A of the DDA to the effect that ‘a person also discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person’. Likewise, words should be added to Section 3B so that the DDA protects an employee from harassment for a reason which relates to the disability of another person.

The case was therefore remitted to the ET to consider, ‘at last’, the merits of Ms Coleman’s claim.

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