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Court backs disability discrimination by association

17 July 2008

Parents caring for disabled children should benefit from the same protection as that offered to disabled people themselves under the equal treatment directive, the European Court of Justice has ruled (Case C-303/06 Coleman).

The directive, the court said, applied not to a particular category of person but by reference to the nature of the discrimination.

The claimant in the case, Sharon Coleman, is the primary carer for her severely disabled son. She was a secretary with law firm Attridge Law, which she left two years after the child’s birth amid allegations that the firm had indirectly discriminated against her because of her son’s disability.

She claims that she has suffered discrimination ranging from insults to the refusal to work more flexible hours, and that she had been constructively dismissed.

The directive does not explicitly recognise discrimination by association in respect of disability and the Disability Discrimination Act 1995, which implements the directive in parts, has been construed as not extending to discrimination by association.

Earlier this year however (31 January 2008) the court’s advocate general suggested that the same principle should apply to other types of discrimination banned by the directive including disability, religion, age and sexual orientation.

Backing Ms Coleman’s claim, the Luxembourg court said that an interpretation of the directive limiting its application only to people who are themselves disabled was liable to deprive the directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee.

The court added that in such circumstances, if the claimant had been treated less favourably than another employee in a similar situation and that this difference in treatment was based on the child’s disability, then that treatment was discriminatory and in breach of the directive.

If the claimant established the facts, it would be for the employer to provide evidence to the contrary.

Ed Williams, barrister at Cloisters, said the ruling clarified that the protection against associative discrimination ought to apply to the areas of religion or belief, age and sexual orientation as well.

"For instance, an employee who is mocked for having an older partner, or a partner of a particular religion, or for their child's sexuality, will now be protected", Williams said.

He addedd that UK employers will need to examine their recruitment and equal opportunity policies carefully to ensure they do not directly or indirectly discriminate against those who are caring, for example, for the disabled or the elderly.

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