Veitch Penny LLP - Exeter | Crediton, Devon

Case

Coleman v Attridge Law (1) Law (2)
Advocate General's opinion - 31 January 2008

Issues

(1) The Disability Discrimination Act 1995 ("the Act")
(2) Council Directive 2000/78/EC ("the Directive")
(3) Discrimination by association

Facts

Ms Sharon Coleman was employed as a legal secretary for Attridge Law. Steve Law was a partner in the Practice. She was primary carer for her son who suffered from bronchomalacia and congenital laryngomalacia.

On 4 March 2005 she accepted voluntary redundancy. On 30 August 2005 she brought a claim for constructive dismissal and disability discrimination arguing that she had been treated less favourably than employees who had non-disabled children. She alleged that she was subjected to conduct that created a hostile atmosphere for her. She alleged that her employer had refused to allow her to return to her existing job after maternity leave. She said that they had called her "lazy" when she wanted to take time off to care for her son and had refused to give her the flexibility of work as they had done for other employees. She alleged that they had told her she was using her "f****** child" to manipulate her working conditions. She said she had been subjected to discriminatory disciplinary action and that they had failed to properly deal with the grievance she had subsequently submitted. In her view, this was in breach of the Directive and the tribunal should construe the Act accordingly.

Whilst not disabled herself, she argued that the Directive was designed to prohibit discrimination, not only against disabled persons themselves but also against those who are victims of discrimination because of an association with a disabled person. She argued the Act should be interpreted accordingly. The matter was therefore referred to the European Court of Justice to consider whether the Directive was designed to provide such protection.

Decision

The Advocate General considered the wording of the phrase "on the grounds of" in Article 1 of the Directive. The purpose of the Directive is to "lay down a general framework for combating discrimination on the grounds of religion, or belief, disability, age or sexual orientation". (Article 1). Article 2 states that the "principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever" on the protected grounds. He concluded that the Directive had established a framework which protected those who were discriminated against because of an association with a disabled person.

Comments

The European Court of Justice is expected to follow this opinion, particularly as discrimination by association is already prohibited by a number of member states. If so, it will be necessary for the tribunal to consider whether additional wording should be added into the Act to comply with the Directive. Consequently, this is an important opinion which extends the classes of employees who may be protected by discrimination legislation. It is estimated that there are 2.5 million carers. Logically speaking, it could lead to claims being made on grounds of association with people of different ages, religion, sexual orientation etc. Employers should therefore review their policy documentation to ensure that this issue is addressed.


Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.