Associative Discrimination – ECJ
Decision in Coleman v Attridge Law
The European Court of Justice has decided that the prohibition of discrimination against employees on ground of disability under the European Directive for Equal Treatment is not limited to employees who are themselves disabled. The ECJ ruled that employees are also protected against direct discrimination (including harassment) by reason of their being the primary carer of a disabled person. This is known as associative discrimination or discrimination by association.
The ruling does not however extend to Art 5 – making reasonable accommodation in the workplace for disabled workers or Art 7 – positive action.
This expansive approach taken by the ECJ contrasts with the strict view of the scope of the DDA taken in London Borough of Lewisham v Malcolm, as mentioned in our recent Law Now. Public sector employees will benefit straightaway from the above ECJ decision, as EU directives are directly enforceable against public authorities. However, for private sector employers the immediate impact will depend on whether the UK employment tribunal can interpret the DDA so as to give effect to the EU Directive.
The current wording of the DDA does not, on the face of it, prevent associative discrimination. However, both the ET and the EAT in this case have indicated a belief that this could be achieved by interpolating suitable wording into the DDA. This would be consistent with the approach taken in Litster –v- Forth Dry Dock Engineering Ltd [1982] in which the House of Lords stated that domestic legislation should be interpreted in line with the underlying directive even if it results in a departure from the literal interpretation of the legislation. In that case the House of Lords went so far as to add wording to the Transfer of Undertakings (Protection of Employment) Regulations 1981 to bring it in line with the Acquired Rights Directive.
Private sector employers should therefore be prepared in case the same approach is taken when Mrs Coleman brings her claim back to the UK employment tribunal. Employers should consider now what amendments they should make to their policies and practices to prevent associative discrimination.
In the event that the domestic tribunal or court decides that the DDA cannot be interpreted consistently with the Directive employees will have to wait until Parliament amends the DDA. This will give employers some additional time to take on board the practical and legal implications of this decision, but it will not detract from the eventual outcome that associative discrimination will be unlawful in the UK.
A copy of the EAT judgement can be found here.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 24/07/2008.
