Further to the e-update on 17 July 2008, a UK Employment Tribunal has held at a pre-hearing review in the case of Coleman v Attridge Law that the Disability Discrimination Act 1995 ("DDA") should be interpreted so as to protect individuals who suffer discrimination or harassment on the grounds of their association with a disabled person.
Ms Coleman, was a legal secretary who brought claims against her employer under the DDA, arguing that she had suffered discrimination and harassment on the grounds of her son's disability, in respect of whom she was the primary carer. Ms Coleman herself was not disabled.
Due to the complexity of the issues surrounding the case, the tribunal referred the case to the ECJ for a preliminary determination. The ECJ held that the EU's anti-discrimination laws (as contained in the EU Equal Treatment Framework Directive) are intended to prohibit direct discrimination and harassment on the grounds of association with someone who has a disability, even where the person concerned is not disabled themselves. The issue for the tribunal was to then determine whether the DDA should be read in such a way as to give effect to such Directive.
The Tribunal considered the Disability Discrimination Act (Amendment) Regulations 2003, which amended the definition of discrimination and harassment under the DDA with effect from 1 October 2004, and the accompanying explanation of the amendments. It noted that the intention was to give full effect to the Directive. Therefore on the basis of the ECJ decision that the Directive covered associative discrimination, and in the absence of express and unambiguous indications to the contrary, the Employment Tribunal held that the DDA must also share this same purpose.
Private sector workers who have caring responsibilities for people with disabilities as defined by the DDA now have the same level of protection as public sector workers, who were able to rely upon the ECJ ruling immediately.
The impact of this decision will remain to be seen. The government estimates that 2.6 million employees carry out the role of an unpaid carer along with their job.
The case will now go forward to a full hearing to determine the substantive merits of the claim relating to the period after 1 October 2004 (i.e. after the 2003 Regulations came into force).
In the meantime, it is important that employers check their policies and procedures to ensure that they comply with the implications of such a decision.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
