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European Court of Justice, July 2008
The European Court has decided that 'discrimination by association' can be illegal in the workplace. Direct discrimination and harassment are prohibited even if they are not against the disabled person him- or herself. Thus an employee had a claim if she was discriminated against or harassed because of her child's disability.
EHRC News Release (17/7/08): Britain's six million carers get new rights after mother's legal victory in Europe (on EHRC website);
Guardian article (18/7/08): Carer brings hope to millions with landmark win on employment rights (on Guardian website).
The employer disputes these allegations, but argued that even if they were true she would have no claim because the DDA only covers discrimination and harassment against the disabled person himself. The employee countered that the European Framework Employment Directive, with which the DDA is required to comply, is not limited in that way. She also argued - and the Employment Appeal Tribunal agreed (www.employmentappeals.gov.uk/Public/Upload/06_0417ResfhAMDM.doc) - that if the directive does extend to claims by people associated with the disabled person, the DDA is capable of being interpreted so as to include these claims, without distorting the words of the statute.
The case was referred to the European Court of Justice as to whether or not the Framework Employment Directive includes discrimination against - or harassment of - someone other than the disabled person, such as the disabled person's mother.
The Advocate General's Opinion, which is influential but not final, supported the employee's view that the Directive includes claims by others, as regards direct discrimination and harassment.
Held by European Court of Justice: the prohibition of direct discrimination is not limited to people who are themselves disabled. It also includes less favourable treatment of an employee based on the disability of his child, whose care is provided primarily by the employee. Similarly, the directive's prohibition of harassment of an employee includes unwanted conduct amounting to harassment which is related to the disability of his child, whose care is provided primarily by the employee.
In the ECJ's view, the purpose of the directive is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the directive applies not to a particular category of person but by reference to the grounds mentioned in Article 1, which include disability.
The ECJ accepted that the directive includes a number of provisions, such as Article 5 giving rights to reasonable accommodation, which are worded to apply only to disabled people. However, the court considered that the existence of these provisions does not mean that the principle of equal treatment in the directive must itself be interpreted strictly, so as to relate only to disabled people. Also, recital 6 of the directive referred both to the general combating of every form of discrimination, and to the need to take appropriate action for the social and economic integration of disabled people. Presumably the court's point here was that discrimination or harassment against someone associated with a disabled person can also hinder that person's integration.
Link to full ECJ judgment (on ECJ website)...
The actual ruling of the court is in fairly limited terms, namely where the disability is that of a child whose care is provided primarily by the employee. However the Opinion of the Advocate General, as well as the reasoning of the court itself, give strong grounds for saying that the same should apply more generally to;
even though the disability is someone else's.
The European Court decision only affects employment and related areas falling within the Framework Employment Directive. For example, it would not extend to provision of goods and services, apart from employment services.
The court accepted that only a disabled person has a right to claim a reasonable adjustment with Article 5 of the directive - though see next paragraph.
The court did not address whether 'indirect discrimination' under Art 2(2)(b) of the directive can be by association with a disabled person. The wording of that provision ("persons...having a particular disability", rather than just 'on the grounds of' or 'related to' disability) cannot be so straightforwardly interpreted to include discrimination by association as can the provisions the court was looking at. On the other hand, the Advocate General seemed to leave it very much open whether indirect discrimination can include discrimination by association. If it can, the result might be not a million miles from providing a reasonable adjustment duty. However, that is very much an issue for another day. This decision was limited to direct discrimination and harassment.
So, for example, this decision does not give a right to reasonable flexible working to care for a disabled child/person. However, it means it is illegal for an employer to be less flexible with a parent because her child is disabled, compared with what he would allow to parents of non-disabled children.
See Employment: discrimination by association and perception: Reinterpreting the DDA... on applying the European ruling in the UK, including news on subsequent UK decisions in the litigation.
See Employment: discrimination by association and perception: Relevance to stammering.
Employment: discrimination by association and perception.
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Last updated 1st November, 2008