After the European Court of Justice decision in Coleman v Attridge Law, it seems that protection from discrimination will be extended to those who, although not themselves disabled, are discriminated against owing to their association with a disabled person.
Mrs Coleman has a disabled son. Her employer refused to allow her the same flexibility in relation to her working hours and conditions as her colleagues who were parents of non-disabled children. When she requested time off to care for her son she was described as "lazy", whereas parents of non-disabled children were allowed time off. Abusive and insulting comments were made about both her and her child. In addition, having occasionally arrived late at the office because of problems relating to her son's condition, she was told that she would be dismissed if she came to work late again. No such threat was made in the case of other employees with non-disabled children who were late for similar reasons.
Eventually Mrs Coleman took voluntary redundancy and then brought a claim for unfair constructive dismissal and less favourable treatment as the primary carer of a disabled child.
The question of whether Mrs Coleman could use the Disability Discrimination Act provisions, designed to bring the provisions of the Equal Treatment Framework Directive into UK law, and bring a discrimination claim against her former employer was referred to the ECJ. The ECJ concluded that the principle of equal treatment was not limited to people who themselves have a disability. On the contrary, it held that the purpose of the directive was to combat all forms of discrimination on the grounds of disability.
Now it seems that the Disability Discrimination Act will extend to protect those who are discriminated against by virtue of their association with a disabled person. As a result, charities must ensure that they treat any requests for flexible working, or time off work in order to look after a disabled dependant, with sensitivity. All such requests should be treated reasonably and any refusals should not be related to the individual's association with the disabled person.
Charities should also bear in mind the fact that the ECJ suggested in its decision that discrimination by association should also be covered in respect of sexual orientation, religion or belief and age, all of which fall within the directive's remit.
- Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors.