ECJ Recognises Carer's Right To Claim 'Discrimination By Association'

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In the European Court of Justice Ms Coleman supported by the Equality and Human Rights Commission has won the right to bring a case at an employment tribunal based on "discrimination by association".
Ms Coleman who worked as a legal secretary in London resigned from the Attridge Law partnership and claimed constructive unfair dismissal.
She justified this with allegations against her employer that included an unsupportive and discriminatory attitude with regard to Ms Coleman's needing to care for her disabled child, a comment by a partner that her "fucking child was always fucking sick", and that her requests for time off were treated differently from other colleagues with medical problems.
The ruling by the European Court of Justice followed a legal opinion of its advocate general establishing that disability discrimination is illegal not just when directed at disabled people but also when applied to people who care for them.
"one way of undermining the dignity and autonomy of people ... is to target not them, but third persons who are closely associated with them....A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation."
The ECJ stated that: "Where an employer treats an employee who is not himself disabled less favourably than another employee in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by the directive."
The judgement of the ECJ will need to be interpreted into UK law. The ECJ signalled that this principle should be extended to all carers.
If the government interprets the ruling literally then employment protection will only be extended to parents of disabled children.
In the absence of legislation it will be open for an employment tribunal to interpret the decision broadly, but if so this may give rise to lengthy appeal(s).
Whether the broad approach will win out remains to be seen.

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© Workrep 18 / 07 / 2008

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