Facts
Mrs Coleman was employed by Attridge law as a legal secretary. She has a severely disabled son and is his primary carer. She claimed that her employers:
- refused to allow her to work flexibly, when parents of non-disabled children were allowed to do so; and
- treated her badly and made abusive comments towards her (such as calling her ‘lazy’) because her son was disabled, when parents of non-disabled children were not exposed to this sort of treatment.
She brought a claim of disability discrimination under the Disability Discrimination Act 1995 (DDA). But she faced a major hurdle because, on a strict reading of the DDA, it protects only disabled people and Mrs Coleman is not disabled.
To overcome this hurdle, Mrs Coleman’s lawyers relied on EU law. They argued that the EU Framework Equality Directive 2000/78, which requires member states to outlaw disability discrimination, is not limited to disabled people. It also protects people who care for, or otherwise associate with, the disabled.
The Employment Tribunal referred the case to the European Court of Justice (ECJ) for a ruling on whether or not EU law does cover carers and people who associate with the disabled.
Decision
The ECJ has just issued its judgment. It agreed with Mrs Coleman’s lawyers that EU disability discrimination law does protect people who ‘associate with’ the disabled, at least as far as direct discrimination and harassment is concerned (see the comment section below for reasonable adjustments). Caring for a disabled person would clearly involve ‘associating’ with them.
UK courts and tribunals will now need to try to interpret the DDA so that it is in step with this wider EU concept of ‘associative’ disability discrimination.
Comment
The ECJ decision does not, crucially, give carers of the disabled the right to have reasonable adjustments made to accommodate their caring responsibilities. It only protects them against direct discrimination or harassment.
For example, suppose that the mother of a disabled child wants part-time working to accommodate her caring responsibilities. On the basis of the ECJ decision, her employer is under no duty to make reasonable adjustments for her.
However, it must not directly discriminate against her by refusing her flexible working request when it would have granted the same request to the mother of a non-disabled child and when the reason for the difference in treatment is the disability.
The ECJ decision does not, therefore, extend the law very far in favour of carers. However, the government will be reviewing the current DDA wording as part of the general streamlining of discrimination law proposed in the forthcoming Equality Bill.
The government will need to decide if it should follow the restrictive approach of the ECJ or go further and introduce a duty to make reasonable adjustments in favour of carers.
EEF has argued that flexible working rights should not be extended in favour of carers in this way. Read our position on the Equality Bill.