DISABILITY DISCRIMINATION IN RELATION TO DEPENDANTS

It is clearly illegal for an employer to discriminate against an employee on the grounds of the employee’s age, disability, race, religion or philosophical belief, sex or sexual orientation. The extent to which the law prohibits an employer from discriminating against an employee because of some characteristic (such as age or disability) possessed by a relative or dependant of the employee, is less clear. This situation is known as “associative discrimination”.

The recent decision of the Employment Appeal Tribunal in Colman v. EBR Attridge Law LLP is the latest stage in C’s long-running battle to bring a claim for associative discrimination. Until March 2005, C was employed by AL, a firm of Solicitors, as a legal secretary. C was the primary carer for her disabled son, who had specialised care needs. C alleged that when she asked for time off to care for her son, her employers accused her of being lazy and seeking to manipulate her working conditions. Eventually, C resigned and accepted voluntary redundancy. She then brought a claim for disability discrimination on the basis of associative discrimination.

The Disability Discrimination Act 1995 does not prohibit associative discrimination in so many words. The Employment Tribunal referred to the European Court of Justice the issue as to whether or not associative discrimination was outlawed under European law. In July 2008, the ECJ ruled in C’s favour and sent the case back to the Employment Tribunal. She then had to convince the Employment Tribunal that it was possible to read the 1995 Act in such a way that it covered associative discrimination. The Employment Tribunal ruled that the 1995 Act could be so read. That decision has now been confirmed by the Employment Appeal Tribunal.

It remains to be seen whether AL appeals further on this point to the Court of Appeal. If it does not, the case will be sent back, once again, to the Employment Tribunal for C’s claim to be finally determined - hopefully. Meanwhile, the Equality Bill is currently wending its way through Parliament. When it becomes law, the Bill will radically recast the whole of discrimination law and be structured so as to make it clear associative discrimination is prohibited. Our advice is that all employers should assume that associative discrimination is prohibited under the present law. In particular, employers should show sensitivity towards those employees who have caring responsibilities towards elderly or disabled relatives, and guard against imposing conditions or requirements which may be found to be indirectly discriminatory against such employees.

If you would like to know more about the implications of this case, please contact Nick Crook (01908 355409) or Gareth Pobjoy (01908 355411)

Filed: 24/11/2009 12:45:45