In Coleman v Attridge Law [2008] Ms Coleman (C) was employed as a legal secretary from January 2001. The following year C gave birth to a son who suffered from apnoeic attacks and congenital laryngomalacia and bronchomalacia within the first years of his life. The child's condition required specialised care and C was the primary carer.

C alleged that, following her return from maternity leave, she was subjected to less favourable treatment by her employer in comparison to those employees with non-disabled children. C made the following allegations:

  • That the respondent refused to allow her to return to her existing job, whereas parents of non-disabled children would be entitled to return to their previous posts.
  • That C was not afforded the same flexibility in respect of working hours and working conditions compared to her colleagues with non-disabled children.
  • That the respondent would refer to C as 'lazy' when she requested time off to care for her disabled child, but would allow her colleagues with non-disabled children time off.
  • That the respondent threatened to take disciplinary action when C arrived late on several occasions for reasons relating to her child's condition, whereas colleagues with non-disabled children who arrived late for similar reasons would have no action taken against them.
  • The respondent made insulting and abusive comments about C and her child when C requested time off work to care for her child following his operation. C alleged that parents of non-disabled children employed by the respondent were not subjected to such comments when they requested time off to care for their non-disabled children.
  • C felt forced to withdraw her formal grievance relating to her less favourable treatment when the matter was not dealt with appropriately.

On 4 March 2005 C accepted voluntary redundancy. She subsequently brought claims for constructive dismissal and disability discrimination, claiming that she was unable to continue employment with the respondent following the treatment she had received. C alleged she was discriminated against under ss3A, 3B and 4 of the Disability Discrimination Act (DDA) 1995 on the grounds of her child's disability.

The question as to whether discrimination by way of association with a disabled person was prohibited by the Equal Treatment Directive (2000/78/EC) (the Directive) was referred to the European Court of Justice (ECJ) for a preliminary ruling.

ECJ'S PRELIMINARY RULING

Article 1 of the Directive is intended to combat 'discrimination on the grounds of religion or belief, disability, age or sexual orientation'. The Directive prohibits direct or indirect discrimination on these grounds.

The ECJ ruled that Articles 1, 2(1) and 2(2)(a) of the Directive must be interpreted so that the prohibition of direct discrimination is not limited to individuals who are disabled. C's treatment by the respondent was contrary to the prohibition of direct discrimination within Article 2(2)(a) of the Directive, as she was treated less favourably than an employee in a comparable situation.

The ECJ also ruled that Articles 1, 2(1) and (3) of the Directive prohibited harassment on the grounds of disability, even where the individual concerned is not disabled. The harassment suffered by C as primary carer of her disabled child was contrary to Article 2(3).

COMMENT

The matter has been referred back to an ET, but the concept has now already been ruled on, that discrimination by association is envisaged and prohibited by the Directive. This decision may lead to a number of claims of 'discrimination by association' under the DDA from employees who are carers to both disabled children and older parents.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.