Flexible working and discrimination: landmark legal ruling ahead

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The Employment Appeal Tribunal has ruled that the question of whether refusing flexible working to the parent of a disabled child is discriminatory should go to the European Court of Justice (ECJ).

Under current regulations, parents of disabled children have the right to request flexible working until the child is 18.

In the case in question Attridge Law v Coleman the company allegedly refused to grant Sharon Coleman flexible working opportunities, although they had granted them to parents whose children are not disabled.

Ms Coleman resigned, claiming discrimination because her child is disabled – associated discrimination.

The Disability Rights Commission (DRC), together with Bates, Wells & Braithwaite solicitors, have supported Ms Coleman’s battle to get the case before the ECJ.

The case revolves around the interpretation of the EU’s equal treatment directive and its impact on UK disability discrimination legislation. The directive deals with equal treatment in employment and occupations and aims to combat discrimination on the grounds of religion, belief, disability, age or sexual orientation.

Although she is not disabled, Ms Coleman’s lawyers contend that the directive protects her from unfair treatment which comes from her association with a disabled person.

Associated discrimination is agreed by lawyers to be operative in cases of race and sexual orientation and, if it agrees with Mrs Coleman’s legal team, the ECJ’s decision would be the first time that disability discrimination will be considered to apply in these circumstances.

The DRC has argued strongly that associated discrimination should be an explicit feature of UK legislation.

Ms Coleman, who worked as a legal secretary, claims she was subjected to unfair treatment by her employers. In particular she claims:

  • she was criticised and described as ‘lazy’ when she wanted to take time off to care for her child
  • on occasions when she was late for work because of problems with care for her child she was told that she would be sacked
  • comments were made by her manager that her “f*****g child” was “always f*****g sick” and that she was using her child to manipulate her work conditions
  • she was not allowed to work from home but other employees experienced no obstacles when wanting to care for their non-disabled children
  • she was placed in a pool of staff selected for redundancy after she said that she wanted to make a formal request for flexible working to care for her child.

Ms Coleman claims that these actions created a hostile atmosphere which forced her to resign in March 2005.

Lucy McLynn, a partner in Bates, Wells & Braithwaite’s employment department said: “It makes no sense that there is protection from less favourable treatment of, say, a wife on the grounds of her mixed-race marriage, but not on grounds of her having a disabled husband.

“This inconsistency not only leaves carers unprotected when they are a particularly vulnerable group, but also creates uncertainty for employers.

“A ruling from the ECJ in this case – which I certainly expect to be in Ms Coleman’s favour – will clarify the scope of protection from associated discrimination and provide a basis upon which everyone in the workplace can operate lawfully.”

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