Not for the first time this year, the UK has been put it in its place by the European Court of Justice (the ECJ) over its interpretation of EU equal treatment legislation. It's now generally the case that employees are protected from discrimination relating to themselves or an associate (e.g. family or friend). This is commonly referred to as discrimination by association.

Coleman v Attridge

In Coleman v Attridge Law, the scope of disability discrimination under the Disability Discrimination Act 1995 (the DDA) was referred to the ECJ. The ECJ held that the DDA did not provide adequate protection for Mrs Coleman, carer of her disabled son. Although Coleman had accepted voluntary redundancy from her employer, she subsequently claimed disability discrimination against them. She claimed she was treated less favourably than other employees returning from maternity leave who didn’t have a disabled son and that her redundancy was the final act of discrimination.

On the face of it, the DDA only provided protection for those discriminated on grounds of their own disability, not that of a third party. As the Framework Directive aims to eliminate discrimination on grounds of disability (amongst other grounds) in the workplace, the ECJ considered this included protection for those who suffer discrimination because of their association with a disabled person.

As a result of the ECJ’s decision, the Employment Tribunal (EAT) will need to consider whether a “purposive” interpretation of the DDA will allow Coleman to be protected in principle.

Does this mean a change in the law?

Do we care (please excuse the pun)? The ECJ’s decision may result in a change in the law, unless the Employment Tribunal interprets the DDA as compliant with the Framework Directive. The government’s response to the consultation on the Equality Bill, published this week, states that it “is considering the implications of the Coleman case” but that it does not propose to introduce protection against discrimination for carers.

Current legislation

Unfortunately, the discrimination legislation since the 1970’s has been drafted piecemeal so is not expressly aligned. However, associative discrimination on grounds of gender harassment was specifically included in this year’s amendments to the Sex Discrimination Act 1976. Associative discrimination on grounds of sexual orientation, religion or belief was specifically included in the relevant 2003 regulations introducing protection on these grounds in England and Wales.

The 2006 regulations implementing protection on grounds of age discrimination is however worded differently again. It provides expressly for harassment by association, but not for direct discrimination by association. It is likely that Employment Tribunal’s will be asked to take a “purposive” interpretation of the 2006 regulations in the same way they will be asked to interpret the DDA to provide this cover. 

The case to watch out for later this year, will be the Court of Appeal’s decision in English v Thomas Sanderson Blinds Ltd, which is presently listed for end of October. Mr English claimed harassment based on homophobic comments of his work mates, which were not aimed at either him or an associate. Nevertheless, he was offended. Did the Framework Directive aim to eliminate this sort of harassment? Probably…