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European Court of Justice (ECJ) ruling extends UK’s discrimination law

22 July 2008

The ECJ has delivered a ruling which extends the ambit of the UK’s disability discrimination legislation to those who are discriminated against because of their association with a disabled person but who are not themselves disabled.

Until now only a person who was disabled could bring a claim under the Disability Discrimination Act 1995. The ruling also has consequences for other equality laws such as that relating to age discrimination.

The ECJ was asked to consider the case of a legal secretary, Ms Coleman, who was the main carer for her disabled son. Ms Coleman claimed she left her job with law firm Attridge Law after being subject to insulting comments about her and her son and denied flexibility in her working conditions. She claimed parents of non-disabled children had not suffered the same detriments.

Following an earlier opinion of the Advocate General, the ECJ had little difficulty in deciding that the European Framework Directive (the Directive) protected non-disabled people from direct discrimination and harassment on the grounds of their association with a disabled person, in this case Ms Coleman’s son.

The ECJ was not asked to consider the position as regards indirect discrimination but did distinguish the duty to make reasonable adjustments for disabled employees saying that this only applied to those who were disabled themselves.

The UK courts are required, as far as possible, to interpret our national law to give effect to the relevant European directive. The Coleman case will now come back to the employment tribunal which is expected to interpret the Disability Discrimination Act 1995 in line with the broader scope of the Directive set out in the ECJ’s ruling.

Much of the publicity around this case has focused on the impact on flexible working for those who care for elderly or disabled relatives but, it should not be forgotten that carers of adults have had the statutory right to request flexible working since April 2007.

The facts of Ms Coleman’s case were quite extreme: successful cases of direct disability discrimination are relatively rare. While it is important that employers treat carers fairly the bigger impact of this case may be that the Directive also applies to age, sexual orientation and religion and belief. Following the ECJ's ruling, direct discrimination and harassment by association in those other circumstances must also be unlawful.

All of the UK’s equality legislation is due to be overhauled and consolidated into a single Equality Act expected to be introduced into Parliament in November this year. It is to be hoped that discrimination by association will be fully covered within that new legislation.

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