The ECJ's judgment was delivered on 17th July 2008.

The Advocate General handed down his opinion on 31 January 2008.

Lucy McLynn has represented Sharon Coleman throughout the English and European court procedures. Lucy McLynn can be contacted for further information at Bates Wells & Braithwaite on 020 7551 7777.

The Facts

Sharon Coleman worked as a legal secretary for a South London law firm. In 2002 she had a child who suffered from a disability in the first years of his life. Following her return to work, she alleges that she was treated less favourably by her employer than other parents of (non-disabled) children were treated in the workplace. This alleged treatment included: not permitting her to return to her previous post, criticising her when she sought to take time off to care for her child, threats of disciplinary action over lateness, refusal of permission to work from home when her child had to have an operation, and harassive comments. Ms Coleman left the firm in March 2005 and brought a claim for constructive dismissal and disability discrimination.

The Law

The European Framework Directive (2000/78/EC) provides protection from discrimination “on grounds of religion or belief, disability, age or sexual orientation”. The language “on grounds of” is the same as that used in the Employment Equality (Sexual Orientation) Regs 2003 and the Employment Equality (Religion and Belief) Regs 2003. Within the UK, the expression “on grounds of” has been interpreted as including those associated with the protected group – see the ACAS guidance on orientation and religion and belief. Similarly, the Race Relations Act 1976 uses the terminology “on racial grounds ”, and this has been interpreted as covering associative discrimination (see, for example, Show Boat Entertainment Centre Ltd v Owens [1984] IRLR The position is different in relation to disability (and age), where the UK legislation restricts the prohibition to less favourable treatment “for a reason which relates to the disabled person’s disability” and “on the ground of the disabled person’s disability ” (cf also the Employment Equality (Age) Regs 2006 – “on grounds of B’s age”). The argument is that this is impermissibly narrower than the protection required under the Framework Directive. The UK Government were lobbied by the DRC (who are backing Sharon Coleman’s case) to change this wording in the DDA in 2003, when many other amendments were made to the DDA to ensure compliance with the Framework Directive, but the Government took the view that the present wording provided sufficient protection as required by the Directive.

The Proceedings So Far

The Employment Tribunal in London South considered the question of jurisdiction under the DDA and concluded that it needed to refer to the ECJ the question of the Framework Directive. The questions referred are:

• Does the Directive only protect from direct discrimination and harassment persons who are themselves disabled?
  
• If no, does the directive protect employees who, though they are not themselves disabled, are treated less favourably or harassed on the ground of their association with a person who is disabled?
  
• Where an employer treats an employee less favourably than he treats or would treat other employees, and it is established that the ground for the treatment of the employee is that the employee has a disabled son for whom the employee cares, is that treatment direct discrimination in breach of the principle of equal treatment established by the Directive?
  
• Where an employer harasses an employee, and it is established that the ground for that treatment is that the employee has a disabled son for whom the employee cares, is that harassment a breach of the principle of equal treatment established by the Directive.

It is quite an unusual step for a Tribunal to refer a question directly to Europe, and this was challenged by the Respondents on appeal. The EAT upheld the decision to refer the questions (see [2007] IRLR 88).

The hearing in the ECJ took place on 9th October 2007, with judgement delivered on 17th July 2008, confirming that protection under the Directive from direct discrimination and harassment does extend to employees associated with disabled people but not disabled themselves.

Next Steps

The ECJ having confirmed that the Framework Directive does provide protection from “associative discrimination”, the next question that the UK Tribunal has had to consider has been whether the DDA, as it stands, can be read in a way that provides that protection (in line with the Tribunal’s power and indeed duty to interpret domestic legislation as far as possible in a way which complies with European law), or whether the DDA will have to be amended. This point was considered by the Tribunal in London South at a hearing on 30th September 2008 and judgement is expected later this year.

Perceptions of the Case

Some commentators have suggested that this is a case about improving carers’ rights to work flexibly. That is not the case. We are not arguing that the duty to make reasonable adjustments should be extended to carers, or those otherwise associated with disabled people. That duty stands apart from the general protection against discrimination under the Framework Directive, and is, under the Directive, expressly limited to “persons with disabilities”. (Prohibition of indirect discrimination under the Framework Directive is likewise expressly limited to persons within the particular protected group – though this of course extends across all the categories of protected employees, not just disabled people.) Whether any future UK Government will be prepared to extend the duty to make reasonable adjustments will be a policy decision, and not something that can be achieved through litigation. What this case is seeking to achieve is simply a recognition that it is unlawful to treat somebody less favourably than any other employee because of their association with a disabled person. Direct discrimination and harassment appear to be major barriers to carers’ full participation in the workplace, and success in the argument in this case will provide protection from that kind of treatment, as well as creating a consistent approach as between disability (and age) and the other strands of discrimination.

Lucy McLynn
Partner, Employment Department
Bates Wells & Braithwaite London LLP
l.mclynn@bwbllp.com