One of the Advocates General to the European Court of Justice
(ECJ) has produced guidance advising the ECJ to protect Sharon
Coleman, a woman who claims she lost her job because she sought
time off work to care for her disabled son.
Coleman took her employer, London's Attridge Law, to court
claiming she was harassed out of her job. The South London
Employment Tribunal asked the ECJ to rule on whether the EU's Equal
Treatment Framework Directive protects people associated with the
disabled, as well as disabled people themselves.
Some of the laws implementing the Directive in the UK do protect
against discrimination by association, for example those dealing
with race and sexuality. The Disability Discrimination Act (DDA)
does not, though. If the ECJ backs the Advocate General's opinion,
which it does in around 80% of cases, the DDA may have to be
changed.
The case would be sent back to the tribunal which would have to
attempt to read the DDA in line with the ECJ's intentions, which in
the opinion of the Advocate General should be that protection is
given on the grounds of disability, not specifically on the grounds
of the employee's disability.
If it could not, the law will have to change, according to
Catherine Barker, an employment law specialist at Pinsent Masons,
the law firm behind OUT-LAW.COM.
"Looking at the DDA, I think it would be very hard to give it a
purposive meaning in the direction of the Directive," said Barker.
"It talks about protections for 'a disabled person' and behaviour
related to 'the disabled person'. It is difficult to see how that
could be reconciled with the opinion."
Barker said, though, that public sector workers would not even
have to wait for the law to be changed. They can take advantage of
EU law changes directly, so would be protected as soon as the ECJ
ruled in favour of the Advocate General's opinion, if that is what
it does do.
Any ruling following this opinion could have a significant
effect on the way that businesses treat staff. They will have to be
far more proactive about allowing flexible working requests in
order to enable carers to carry out their duties outside the
workplace, said Barker.
"This is going to have potentially huge implications for
employers who will need to be sensitive to the needs of those with
caring responsibilities," she said. "They should be sensitive to
all requests for flexible working and ensure that people aren't
given the worst jobs or made to feel less valuable simply because
they have to leave at a certain time of day. You can't have a
culture where one size fits all."
Any ruling could affect large numbers of people. Carers UK
represents those who look after disabled people and estimates that
the six million carers in the UK today will grow in number to nine
million over the next 30 years.
Coleman, a legal secretary, gave birth to a son in 2002 who is
disabled, and for whom she is the primary carer. She accepted
voluntary redundancy in 2005 and filed a claim for constructive
dismissal later that year.
She claimed that she was treated less favourably than people
with non-disabled children, that she was barred from taking her old
job back when she returned from maternity leave and that she was
not allowed the same flexible working arrangements as colleagues
with non-disabled children.
Coleman said that her employers called her 'lazy' when she
sought time off work to care for her son and said that she was
using her 'fucking child' to manipulate her working conditions.
Though the DDA does not give protection to those associated with
people with disabilities, Coleman argued that the Act should be
read in conjunction with the Equal Treatment Framework Directive,
and should be read as affording that protection.
Advocate General Miguel Poiares Maduro agreed. "The four
questions referred to the Court by the Employment Tribunal boil
down to a single issue of law: does the Directive protect
non-disabled people who, in the context of their employment, suffer
direct discrimination and/or harassment because they are associated
with a disabled person?," he wrote in his opinion.
"Directly targeting a person who has a particular characteristic
is not the only way of discriminating against him or her; there are
also other, more subtle and less obvious ways of doing so," he
wrote. "One way of undermining the dignity and autonomy of people
who belong to a certain group is to target not them, but third
persons who are closely associated with them and do not themselves
belong to the group. A robust conception of equality entails that
these subtler forms of discrimination should also be caught by
anti-discrimination legislation, as they, too, affect the persons
belonging to suspect classifications."
"It is clear that had the claimant been disabled herself the
Directive would have been applicable," he ruled. "In the present
case, though, the allegation is that it was the disability of the
claimant’s son which triggered the discriminatory treatment. Thus,
the person who is disabled and the person who is the obvious victim
or the object of the discriminatory act are not the same. Does this
render the Directive inapplicable? Given my analysis up to this
point, I think it does not."
"One can be a victim of unlawful discrimination on the ground of
disability under the Directive without being disabled oneself; what
is important is that that disability – in this case the disability
of Ms Coleman’s son – was used as a reason to treat her less well,"
he concluded. "If Ms Coleman can prove that she was treated less
favourably because of her son’s disability she should be able to
rely on the Directive."
