Octoberbrochure - (Page 3) Coleman v Attridge Law Associative discrimination is subjecting someone to less favourable treatment by reason of their association with a person against whom it would be unlawful to discriminate. In Coleman v Attridge Law and another C-303/06 (ECJ, judgment 17 July 2008), the ECJ has stated that associative discrimination is outlawed by Council Directive 2000/78 (the employment equality framework directive). Ben joined Chambers on 1st October after the successful completion of his 12-month pupillage at 9 Gough Square, where he was pupil to Vince Williams, Rosina Cottage and Tom Little. A graduate of the University of Bristol (BA 2004) and City University (LLB 2006), he is keen to establish a broad practice in line with Chambers’. Ben Rodgers The litigation so far Sharon Coleman was a legal secretary at Attridge Law, a wellknown London criminal law firm. She is not disabled. Her son was born in 2002 with respiratory problems. He is disabled. She resigned in 2005 and claimed against her former employer for constructive dismissal and disability discrimination. In the London (South) Tribunal, she claimed that her employer had stopped her returning to her previous post after maternity leave, criticised her when she sought time off to care for her son, threatened her with disciplinary action over lateness, refused permission to work from home when her child had to have an operation, and subjected her to harassing comments regarding her son (note that the respondents vigorously deny all of this). With support from the Equality and Human Rights Commission, Coleman submitted that the Disability Discrimination Act 1995 (DDA) protects her from such discrimination even though she is not disabled, because it should be read so as to outlaw associative discrimination (even though it does not do so expressly). Alternatively, she said, Directive 2000/78 gives her this protection. Croydon bravely referred the matter to Luxembourg forthwith. The question for the ECJ was, does the employment equality framework directive protect a person who is directly discriminated against or harassed by reason of their association with a disabled person? Adv.-Gen. Poiares Maduro advised in January that it does. The reader may remember the British media reporting his opinion as a decision of the ECJ (which it was not) which had the effect of giving six million carers the right to flexitime (which it does not). Disability helplines were inundated with calls from carers asking about their new protections. By the time the ECJ decided in July that it agreed with Maduro (by reference to the text of the Directive, rather than the more esoteric sources the AG drew upon), the story was old news. Malcolm (2008) UKHL 43, in order for a “reason” to “relate to” a person’s disability, the alleged discriminator must have knowledge of the disability. Further, employers do not need to give special consideration to requests for flexible working time from employees who care for a disabled person. They merely need to treat such requests in the same way that they would treat a similar request where the time off was not needed for the care of a disabled person. Wider implications Although the result for carers can be overstated, this decision does have the important consequence of making associative discrimination illegal under Directive 2000/78. This applies to age discrimination, too. So you don’t have to be disabled, young or old to be discriminated against on any of those grounds. The ET will probably now interpret the DDA so as to give effect to the ECJ’s judgment. Mary Stacey, the Chairman when the matter was at Croydon, found it was arguable that the DDA could be read purposively so as to give it the interpretation of EU law which the Claimant wanted (and in July, got). HHJ Clarke in the EAT agreed. So (if the Tribunal finds for her on the hotlydisputed facts), Miss Coleman can win even without a rewrite of the legislation. But a re-write there will be. The statute book is going to have to change in order to introduce associative discrimination into the Employment Equality (Age) Regulations 2006 and the DDA. An all-encompassing equality bill is to be announced in the Queen’s Speech in November, although the text probably won’t be out until the middle of next year. Coleman v Attridge requires discrimination rules to change somewhat, and with this field so fluid right now, it is an excellent time to shape things. Coleman v Attridge, like Lewisham v Malcolm, poses teasing questions about the sort of discrimination our society wishes to prohibit. Answering that question, you arrive at a deeper conundrum: what kind of balance do you want between the employer and the employee? After our Paralympic heroes this summer scooped more medals than any other nation bar China, it must be hoped that we will have world-beating anti-discrimination laws in 2012. Ben Rodgers The result for carers This decision does not give carers a new right to flexible working time. It merely demonstrates that requests by employees for flexi-time are to be treated equally, whether a disabled person is the reason for the request or not. Note also that this is not to be confused with the more familiar features of disability law: this is not a duty to make reasonable adjustments for carers! Employers’ representatives say that the decision puts employers at risk even where they are not aware that the employee is a carer. This is wrong. As the House of Lords decided in LB Lewisham v View our news online at www.9goughsquare.co.uk 3 http://www.9goughsquare.co.uk
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