Name of weekly column: Speechly Speak

Name of this week's contributor: Jessica Halling, solicitor, Speechly Bircham

Until now, carers have had limited protection under UK employment law. Parents of disabled children under 18-years-old and carers of certain adults have the right to request flexible working and carers, more generally, are allowed time off to deal with emergencies. But that is where the protection has stopped.

European directive on disability

On 17 July 2008, a landmark ruling was delivered by the European Court of Justice (ECJ). It held that an employee who has suffered direct discrimination and victimisation on the grounds of their child’s disability will be protected by the European directive on disability, even though the employee herself was not disabled.

Ms Coleman was a legal secretary. Her son suffered from a medical condition which required specialised care. Coleman was the primary carer. She brought a claim against Attridge Law, a law firm (oh dear!), alleging that following her return from maternity leave her employer treated her badly because of her son’s condition and in particular treated her differently from the parents of non-disabled children.

The employment tribunal has not yet made a decision on the facts. First, it asked the ECJ to consider whether the European directive only protected people who were disabled from being directly discriminated against and harassed or whether the protection extended to able-bodied people on the grounds of their association with a disabled person (i.e. Coleman looking after her disabled son). The ECJ held that European directive is not limited to disabled people alone and therefore employees who suffer discrimination or harassment on grounds of their children’s disability are covered by the directive.

So what does this mean?

Coleman’s case will now go back to the employment tribunal who will decide whether the UK legislation can be interpreted to give effect to the ECJ ruling. It's likely that UK legislation will need to be amended. Currently, the Disability Discrimination Act 1995 is limited to discrimination against a person on the grounds of his or her disability and not on the grounds of being associated to someone who is disabled.

Disability discrimination

The European directive that covers disability discrimination also covers discrimination on the grounds of sexual orientation, age, religion and belief and so similar amendments to other UK discrimination legislation are likely to be necessary.

In the Government’s response to the consultation on the Equality Bill, published by the Government Equalities Office on 21 July 2008, it indicates that it is considering the implications of the recent ECJ decision in Coleman v Attridge Law.

There are millions of carers in the UK. The significance of this decision is vast. Carers now have much greater protection against discrimination than ever before. Be warned.

So what should employers do?

Check your flexible working and equal opportunities policies. They should prohibit discrimination by association (on the grounds of sexual orientation, age, religion and belief as well as disability). For example, it is not acceptable for an employee to be harassed because they have a disabled child and wish to have time off to care for that child (Coleman alleged that she was called “lazy” and subject to abusive and insulting remarks) just as it is not acceptable to harass a fellow employee on the grounds that they are married to someone forty years their senior.

Flexible working requests

Take extra care when dealing with flexible working requests from carers of disabled and elderly people. You don’t want to be faced with a disability discrimination claim (or indeed an age discrimination claim) because you have rejected a flexible working request from an employee who is the primary carer of a disabled individual.