An out of court settlement has now been reached in the long-running case of Coleman v Attridge Law, which has confirmed that employees are protected from ‘associative discrimination’ under the Disability Discrimination Act 1995 (DDA).
Sharon Coleman contended that she had been discriminated against on the grounds of her son’s disability. Amongst her claims of unfair treatment were that she was not permitted to work from home, even though other employees were allowed to do so to care for non-disabled children, and that she was placed in a pool of staff selected for redundancy after she said that she intended to make a formal request for flexible working in order to care for her son. Ms Coleman claimed that her employer’s actions had created a hostile environment which forced her to resign.
Ms Coleman brought proceedings against her employer under the DDA and for unfair dismissal. She claimed that the effect of the EC Equal Treatment Directive was to outlaw associative discrimination and it was therefore open to the Employment Tribunal (ET) to construe the DDA accordingly.
The question was referred to the European Court of Justice (ECJ), which ruled that the Directive was intended to guarantee such protection. In the ECJ’s view, 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.
The Employment Appeal Tribunal subsequently held that since 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’, the DDA can be interpreted so as to apply to adverse treatment by reason of the disability of another person. In this case, to give effect to the ECJ’s decision, words should be added to Section 3A of the DDA to the effect that ‘a person also directly 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 had been remitted to the ET to consider the merits of Ms Coleman’s claim, but the parties have now agreed an out of court settlement.
The Equality Bill specifically outlaws associative discrimination. The Bill recently passed its third reading and is expected to receive Royal Assent shortly.
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