The EAT has confirmed that the Disability Discrimination Act 1995 (DDA) is capable of being interpreted to protect people from discrimination on the basis of their association with a disabled person.
Employment legal executive Sally Andrews comments:
In July 2008 the European Court of Justice (ECJ) ruled in the case of Coleman v Attridge Law and Law (C-303/06) that the European Equal Treatment Directive (2000/78/EC) requires member states to extend protection against disability discrimination to those associated with a disabled person, as well as the disabled person themselves. The claim was being pursued by an individual who claimed she had been discriminated against by her former employer as a result of being the primary carer of her disabled son. The case returned to the employment tribunal to decide whether the DDA, as currently drafted, can be interpreted so as to give effect to this decision or whether it requires amendment.
The employment tribunal held that it was obliged to interpret the DDA, so far as possible, as applying to associative discrimination. The tribunal considered that in order to do so, it was possible to read appropriate additional words into the legislation to protect “a person associated with a disabled person”. Attridge Law appealed against this decision on the grounds that the tribunal had “distorted and rewritten” the DDA.
The EAT has dismissed the appeal and the case will go back to the tribunal for a full hearing on the merits of the claim. The EAT decided that, in light of previous case law, it was possible to add words to the DDA in order to cover associative discrimination provided such words were “compatible with the underlying thrust of the legislation”. Associative discrimination is already prohibited in other strands of UK discrimination law, and it can generally be presumed that Parliament intended to give full effect to EC law unless the express terms of the legislation make it impossible.
However, the EAT disagreed with the wording suggested by the tribunal and suggested instead that two additional clauses should be added to the DDA, referring to discrimination and harassment “by reason of the disability of another person”.
Comment
This decision will primarily benefit those with caring responsibilities who will be protected against discrimination or harassment based on the disability of the person they care for. It does not establish any obligation on the part of employers to make reasonable adjustments for carers, who will still have to rely on the limited rights to take emergency leave for dependants or to apply for flexible working.
The Equality Bill, currently progressing through Parliament and due to come into force in October 2010, has been drafted to cover associative discrimination across all strands of discrimination as well as discrimination based on a perceived characteristic.
Click here for a copy of the judgment.