Biggart Baillie Solicitors

ECJ confirms that Disability Discrimination by Association is prohibited under European Law

11th August 2008

In February, we published a news alert highlighting that the Advocate General had issued his Opinion that the EC Directive establishing a framework for equal treatment in employment also protects those who, although not themselves disabled, suffer discrimination or harassment because of their association with a disabled person.
The Advocate General's opinion is like a 'preliminary ruling' and the European Court of Justice ("ECJ") has the final say.  The ECJ has now published its Judgment and confirmed that direct discrimination and/or harassment by association is prohibited by the Directive.

The ECJ's ruling has far reaching effects.  It states that the Directive protects against discrimination “on the grounds of” disability and makes it unlawful for an employer to rely on disability to treat employees less well than others. This does not change when the employee who is the object of discrimination is not disabled herself. Furthermore, the same principle of discrimination by association applies to any of the prohibited grounds (disability, race, 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.

The case will now be heard in the UK employment tribunal which will have to determine whether the Disability Discrimination Act contains a duty for employers not to discriminate against employees due to their association with a disabled person so as to give effect to the Directive.

Our view is that the DDA as it currently stands is not open to such interpretation.  However, there are now potentially 2 separate regimes in relation to the principle of discrimination by association:

1. Public authorities and other Quangos etc now have a duty to ensure that there is no discrimination by association in their workforce and in the services they provide.  This is because the ECJ Judgment has 'direct effect' on national governments and governmental bodies and organisations.

2. However, if the tribunal does not find that the DDA already contains provisions to deal with disability discrimination by association, 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.  This means that presently, private sector employers may not be under a duty to ensure that there is no discrimination by association.  It would, however, be prudent for all employers to assume that they do have such a duty.