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
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...
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