Biggart Baillie Solicitors

Discrimination by Association Prohibited

6th February 2008 

The Advocate General has issued his Opinion that the EC Directive establishing a framework for equal treatment in employment protects those who, although not themselves disabled, suffer discrimination or harassment because of their association with a disabled person.

In the case Coleman v Attridge Law, the Claimant, who was not herself disabled, cared for her disabled son.  On asking for time off to care for him, her employer accused her of being 'lazy' and trying to manipulate her working conditions.  She raised a claim under the Disability Discrimination Act 1995, arguing that she had suffered disability discrimination by association.  On a literal reading the DDA does not cover such discrimination however, arguably, the Directive implies that it should.  The case was referred to the ECJ for a preliminary ruling.

The Advocate General (whose opinion is usually followed by the ECJ) has stated that direct discrimination and/ or harassment by association is prohibited by the Directive.  He said that the Directive protects against discrimination “on the grounds of” disability and makes it unlawful for an employer to rely on religion/ age/ disability, etc to treat employees less well than others.  This does not change when the employee who is the object of discrimination is not disabled herself.  He also indicated that the same principle applies to any of the prohibited grounds (sex, religion or belief, disability, age or sexual orientation), giving protection from discrimination, for example, to a person married to a member of a particular religious group.

If the ECJ endorses the Opinion when it issues its ruling (expected later this year), the employment tribunal will then have to determine whether it can interpret the DDA so as to give effect to the Directive.  If not, it is likely that the DDA will be amended in the future, along with the statutory rules relating to sex and age discrimination, which are currently drafted in a similar way to those in the DDA.

The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.