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 alleged 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 was different in relation to disability (and age), where the UK legislation restricted 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 in Sharon Coleman's case was that this is impermissibly narrower than the protection required under the Framework Directive.

The Employment Tribunal in London South considered the question of jurisdiction under the DDA and concluded that it needed to refer questions to the European Court of Justice in Luxembourg about the scope of protection of people who are not themselves disabled under the Framework 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 who are not disabled themselves.

The ECJ having confirmed that the Framework Directive does provide protection from "associative discrimination", the next question that the UK Tribunal had to consider was 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 would need to be amended. The Tribunal in London South ruled that it could read the DDA consistently with Eruopean law, giving Sharon and others associated with disabled people protection from direct discrimination and harassment from October 2004 (when the Framework Directive was implemented in the UK). This was again subject to appeal to the Employment Appeal Tribunal, and again the appeal was unsuccessful (see [2008] IRLR 722).

In the meantime the Government decided, in light of the ruling by the ECJ in Coleman, to legislate in any case so as to cover associative discrimination across all the categories of discrimination law, and not only in the workplace but also in respect of goods and services. This is now part of the Equality Act 2010.

After it was finally established that Sharon was entitled to bring her claim, the case was listed for a hearing (to determine the facts of how Sharon had been treated) at the end of March 2010. Shortly beforehand the case was settled for £12,000. Sharon did not have any financial loss, as she had secured another job straight after leaving Attridge, so her compensation would only have been for the injury to her feelings.

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 have not argued 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 achieved was 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 have been major barriers to carers’ full participation in the workplace, and success in this case has provided protection from that kind of treatment to the 2.6 million people who combine work and caring responsibilities.

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