European Court of Justice breaks new ground for carers
17th July 2008
Legal briefing
The eagerly awaited decision of the European Court of Justice (ECJ) in the case of Coleman v Attridge was released today. The Court has held, as expected, that Sharon Coleman can bring a claim of disability discrimination against her employer even though she herself does not have a disability.
Ms Coleman worked as a legal secretary for Attridge Law Solicitors from January 2001. In 2002 she gave birth to a disabled child for whom she was the primary carer. In 2005 after having accepted voluntary redundancy she brought a claim in the Employment Tribunal for constructive unfair dismissal and disability discrimination on the basis that she had been treated less favourably than other employees because she was the primary carer of a disabled child.
The Disability Discrimination Act 1995 (DDA) only allows people who have a disability to bring claims of disability discrimination (apart from where a non disabled person alleges that they have been victimised for supporting another person’s claim for disability discrimination).
Ms Coleman, however, argued before the tribunal that the European Commission Directive 2000/78, known as the equal treatment directive had not properly been transposed into UK law in the form of the DDA.
She claimed that the Directive did allow her to bring a claim for less favourable treatment and harassment because of her association with her disabled son. This is because the Directive prohibits discrimination on the grounds of religion or belief, disability, age or sexual orientation.
The employment tribunal referred her case to the European Court as this point needed to be decided before it could come to any of her allegations of less favourable treatment.
The European court held that although the provisions relating to reasonable accommodation or adjustments in the workplace can relate only to disabled people, this does not mean that the provisions prohibiting direct discrimination and harassment must relate exclusively to disabled people.
Agreeing with Ms Coleman’s argument the court held that ‘where it is established that an employee in a situation such as that in the present case suffers discrimination on the grounds of disability, an interpretation of Directive 2000/78 limiting its application only to people who are themselves disabled is liable to deprive that directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee”.
Legal implications for employers
The practical effect of this decision is that in the long-term the DDA will have to be amended to permit claims for direct discrimination and harassment to be brought on the grounds of disability by non-disabled claimants. The immediate effect is that people with claims against public sector organisations can rely directly on the directive.
Claimants with cases against private sector organisations will need to argue that the tribunals and courts should make their decisions based on the Directive and this case, rather than the DDA as it is currently framed.
EFD says that employers who have good policies in place that are well implemented have little to fear from this decision. There is no obligation on employers to make reasonable adjustments for non-disabled employees.
They must, however, ensure that they do not directly discriminate against or harass an employee on the grounds of disability e.g. because they care for a disabled person or have a partner who is HIV positive.
Ends
Notes to editors
Media enquiries, please contact:
Liz Nightingale, Communications Manager
Employers' Forum on Disability
Email: liz.nightingale@efd.org.uk
Telephone: 020 7403 3020
About Employers' Forum on Disability
Employers' Forum on Disability is the employers' organisation focused on disability as it affects employers and service providers. With over 400 members, EFD represents organisations that employ around 20 per cent of the UK workforce.Since its establishment in 1991, EFD has worked closely with government and other stakeholders, sharing best practice to make it easier to employ disabled people and serve disabled customers.