Nick Sheppard considers a recent landmark case involving disability discrimination, and advises that employers could face additional obligations when considering requests for flexible working from employees who are carers.

There are 6 million carers in the UK. Current employment law provides that carers of people with a disability are entitled to limited time off to deal with emergencies affecting their dependants. Carers who are parents of a disabled child have the right to apply for flexible working.

Following a recent European Court of Justice (ECJ) decision, employers could see an extension in flexible and part-time working and carers could potentially have a new cause of action if they are treated less favourably than other employees, because of their association with a disabled person, when making requests for time off work.

In Coleman v Attridge Law [2008], Ms Coleman was the primary carer of her disabled son who suffered from a number of disabilities from birth. She was refused parental leave at the end of her maternity leave (and was subsequently criticised for seeking it) to look after her son because he required an operation in relation to his disabilities.

She was forced to take all of her annual leave so that she could look after her son. She was not permitted to return to her existing job on her return to work and was accused of being lazy when she sought to take time off to look after him. She was threatened with disciplinary action because of this. She was also refused permission for flexible working while other employees without disabled children were granted permission. She felt forced to resign from her job.

Backed by the Equality and Human Rights Commission, Ms Coleman claimed harassment, victimisation and discrimination by association on the ground of being a carer of her disabled son.

‘Associated discrimination’ is generally understood as discrimination against a non-disabled person on the ground of their association with, in this case, a disabled person. There are no provisions in the Disability Discrimination Act (DDA) that provide protection against associated discrimination and so Ms Coleman relied on section 3A(5) of the DDA 1995.

The Equal Treatment Framework Directive 2000/78/EC (‘the Directive’) which established a general framework for equal treatment in employment and occupation was implemented into UK law through section 3A(5) of DDA 1995. Ms Coleman argued that the Directive had not been adequately implemented into UK law because a literal reading of the DDA only protected a person on the ground of their own disability.

The principle of indirect effect obliges national courts to interpret UK legislation as far as possible in accordance with European law even if such European law does not have direct effect. As Article 1 of the Directive prohibits discrimination on the ground of disability and Article 2 of the Directive prohibits direct and indirect discrimination, Ms Coleman argued that a tribunal should interpret section 3A(5) so as to include discrimination by association to ensure its compatibility with the Directive.

Decision delivered

The Employment Appeal Tribunal (EAT) made a reference to the ECJ to decide if the Directive applied to those closely associated with a disabled person. In July 2008, the ECJ delivered its decision that the Directive can be interpreted so that it prohibits direct discrimination and harassment on the ground of disability against those associated with a disabled person.

If an employer treats a non-disabled employee less favourably than another employee in a similar situation on the grounds of disability of their child, it is direct discrimination contrary to the Directive.

The ECJ rejected the argument that because some sections of the DDA specifically applied to disabled people (i.e. section 4 duty to make reasonable adjustments) the DDA cannot apply to non-disabled people.

As Article 1 prohibits all types of disability, it is not limited to any particular group or individual. If the rules were interpreted to only apply to disabled people it would reduce the protection that the Directive intended to guarantee.

The ECJ also referred to Recital 6 and Article 13 of the Directive to highlight the fact that the Directive gives member states the power to take action to prevent discrimination and emphasise the importance of prohibiting all forms of discrimination and facilitate the social and economic integration of disabled people.

Ms Coleman’s case will return to the employment tribunal for a hearing later on this year. The tribunal will have to determine whether the DDA can be interpreted in accordance with the ECJ’s decision. If it cannot, the DDA will need to be amended. Anyone working in the public sector can rely on the ECJ’s decision and the Directive to protect them against associated discrimination because of the principle of direct effect.

Implications of Coleman v Attridge Law

Carers UK and the Equality and Human Rights Commission consider this to be a landmark decision as it will assist carers in bringing claims for associated disability discrimination.

This means that employers face additional obligations when considering requests for flexible working/time off work. It is possible that employers could face claims for disability discrimination if they reject requests for flexible working by employees who care for a person with a disability. They will have to determine which of their employees have caring responsibilities.

It will also be difficult for employers to know if the person is disabled for the purposes of the DDA and may have to take an employee’s word that their relative is disabled. A request from an employer for medical evidence of a disability from someone that they do not have an employment relationship with raises confidentiality and data protection issues.

Employers will have to ensure that any flexible working policies they offer apply equally to all employees, including those with caring responsibilities. For example, employers who allow flexible working to mothers with small children, may, for example, have to grant the same rights to employees who care for a disabled relative.

Employers should also examine their recruitment and equal opportunities policies to ensure they do not directly discriminate against those who are caring for the disabled.

The decision could also have implications for other areas in which discrimination by association is not covered by UK legislation, in particular age and sex discrimination.

Nick Sheppard is an employment partner at Langleys.