Coleman v. Attridge Law - Impact Of ECJ's Ruling On Associative Disability Discrimination'

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...