Associated Discrimination – Advocate General’s Opinion

The Advocate General has handed down his opinion in the case of Attridge Law v Coleman. The case concerns the interpretation of the EU Equal Treatment Framework Directive and its impact on disability discrimination legislation in the UK. 

Sharon Coleman brought a claim of disability discrimination and constructive dismissal against her ex-employer on the grounds that she had been discriminated against because of her son’s disability. Amongst her claims of unfair treatment were that she was not permitted to work from home, even though other employees were allowed to do so to care for non-disabled children, and that she was placed in a pool of staff selected for redundancy after she said that she intended to make a formal request for flexible working in order to care for her son. Ms Coleman claimed that her employer’s actions had created a hostile environment which forced her to resign.

Section 3A(5) of the Disability Discrimination Act 1995 (DDA) is worded such that a person who is not disabled but who is discriminated against because of another person’s disability cannot bring a claim. It would not appear, therefore, to protect someone caring for a disabled person. Ms Coleman argued that the Equal Treatment Framework Directive does give protection from unfair treatment which arises out of association with a disabled person. The Employment Tribunal referred the question to the European Court of Justice (ECJ) in order to establish whether the UK law properly implements the Directive.

The Advocate General’s opinion is that such discrimination is prohibited under the Directive. He said, “One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them.” In his view, to be protected by the Directive it is not necessary for someone who is the object of discrimination to have been mistreated on account of their disability. It is enough that they were mistreated on account of disability. Therefore, if Mrs Coleman can prove that she suffered less favourable treatment than other members of staff because of her son’s disability, she should be able to rely on the Directive.

The Advocate General’s opinion is not binding on the ECJ but it is followed in 80 per cent of cases. If the Court does support his decision, it will apply to UK laws on discrimination on other grounds, for example age discrimination, and may require amendments to domestic legislation to make it compatible with EU law.

The ECJ’s decision is expected in May 2008.