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Legal update: Third party disability discrimination

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10th Dec 2009
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Recently an employee took her employer to tribunal after claiming that she was discriminated against, not for herself but on the basis of her son’s disability. Richard White, specialist employment solicitor at Withy King considers this case further.

Although disability discrimination in the work place is often highlighted in the news and is an issue with which many HR managers are familiar, less widely publicised is the issue of discrimination on the basis of a third party’s disability. Richard White provides legal advice and background to this issue.

The case: EBR Law LLP and Another v Coleman

Facts
Ms Coleman was employed by EBR Attridge LLP (formally Attridge Law) as a legal secretary. Although Ms Coleman was not disabled, she was the principle carer for her son who suffered from bronchomalacia and congential laryngomalacia.

Due to her son’s disability, Ms Coleman was often required to take additional time off work, and felt that certain employees within the firm were suggesting she used her son’s disability as a means to obtain additional holiday.

Claim
Following her resignation in 2005, Ms Coleman brought a case in the employment tribunal for constructive dismissal claiming  that the firm and one of the Partners had subjected her to direct discrimination and harassment on the basis of her son’s disability, contrary to sections 3A(5) and 3B of the Disability Discrimination Act 1995 (DDA).

She claimed that she had been accused of being lazy and that derogatory statements had been made about her and her son. She further claimed that her application for flexible hours had been refused by her employer.
On the face of it the DDA does not apply to cases of discrimination on the grounds of an employee’s association with a disabled person.  However, Ms Coleman argued that the EU Framework Directive which covers disability discrimination (but which was introduced in 2006 after the DDA) outlawed “associative discrimination” and that the DDA should be interpreted in line with this. 
 

Decision
At the pre hearing review, the tribunal considered whether Ms Coleman was entitled to pursue a claim under the DDA, bearing in mind that she is not disabled.

The tribunal requested guidance from the European Court of Justice and subsequently found that the DDA could be interpreted to cover occasions of associative discrimination.  It decided that references to a disabled person in sections 3A(5), 3B and 4 of the DDA could include those individuals who are associated with a disabled person.

EBR Attridge LLP appealed this decision stating that first, the tribunal had distorted and re written the DDA and that second, the Directive cited could not have any effect as the incidents occurred prior to its implementation in 2006.  The appeal went to the Employment Appeal Tribunal.

The EAT dismissed both grounds of appeal.  In making this decision, the EAT considered that there would be “nothing impossible” about adding words to the DDA to extend it to include associative discrimination, even if it would change the overall meaning of the Act.  The only limitation they placed on it was that it should not alter the “underlying thrust” or “scheme” of the Act.  They noted that associative discrimination is already prohibited in other UK discrimination law and therefore concluded that adding this to disability discrimination law would be “fully in conformity with the legislation as drafted”.

The EAT decided that although the Directive was not formally implemented until December 2006, it had been in force in the UK since October 2004.  As such, the argument that it could not be used was found to be incorrect as once legislation to implement a Directive is in force, it should be immediately interpreted to give effect to the Directive.

The claim was then remitted to the tribunal for the tribunal to decide whether or not Ms Coleman was in fact discriminated against in connection with her son’s disability.  To date, the final hearing has not been heard.

Comment
Although the final hearing has not yet occurred, it is already appearing to be a case of particular importance to workers who are carers of disabled individuals.  Whilst carers may already be permitted limited time off in the event of an emergency relating to those they care for and have the right to apply to work flexible hours, it has become apparent that they will now be able to use the DDA when they feel they are being treated less favourably then others they work with, or are the subject of harassment due to the disability of the individual they care for.

Although this case does not  make any obligation for adjustments to be made in the work place for carers, it is one which employers will need to pay close attention to particularly with regard to requests for flexible working hours to make sure they are not discriminating against employees who may care for disabled family members.
 

For further advice, please contact Richard White, specialist employment solicitor at Withy King, 01865 268636 or mail to [email protected]

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