DISCRIMINATION — Disability — Employee caring for disabled son — Claims against employer of direct discrimination and harassment on ground of disability — Whether prohibition of discrimination extending to non disabled employee — Disability Discrimination Act 1995, ss 3A, 3B (as inserted by Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673), reg 4)
The Disability Discrimination Act 1995 should be interpreted so as to prohibit discrimination against employees who, although not themselves disabled, were treated less favourably or harrassed on the ground of their association with a person who was disabled.
The Employment Appeal Tribunal so held when dismissing the appeal of the employers, EBR Attridge Law LLP and Mr Steven Law, against the decision of an employment tribunal sent to the parties on 26 November 2008 that the 1995 Act could be construed so as to apply to “associative discrimination” and that accordingly the tribunal had the jurisdiction to hear the claim of the employee, Miss Sharon Coleman, who claimed that the employers had discriminated against her, contrary to ss 3A(5) and 3B of the 1995 Act, because of the disablility of her son, of whom she was the primary carer. On an earlier reference in the same proceedings the European Court of Justice  ICR 1128 had held that “associative discrimination” fell within Council Directive 2000/78/EC (OJ 2000 L303, p16) (“the Equal Treatment Framework Directive”).
Disability Discrimination Act 1995, s 3A(5) provides, as inserted: “A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.”
UNDERHILL J (PRESIDENT) said that the Court of Justice had acknowledged that the Equal Treatment Framework Directive made no express reference to associative discrimination and that its specific provisions appeared to be directed only at cases where the claimant was disabled. But it had held that the objects of the Directive required a broader approach. The employment judge had decided that she was obliged to interpret the 1995 Act so as to conform with the effect of the Directive as declared by the Court of Justice by supplying words if necessary unless it contained “an express and unambiguous indication to the contrary” and since there was no such indication she should accept the claimant’s case. It was a principle of European law that courts of member states should “so far as possible” interpret domestic legislation in order to give effect to the state’s obligations under European law typically arising under a Directive. In his Lordship’s judgment there was nothing impossible about adding words to the provisions of the 1995 Act so as to cover associative discrimination. The proscription of associative discrimination was an extension of the scope of the legislation as enacted but it was in no sense repugnant to it. It was an extension fully in conformity with the aims of the legislation as drafted. The concept of discrimination on the grounds of disability remained central. To give effect to the reasoning of the Court of Justice his Lordship would add to s 3A a ss (5A): “A person also directly discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person.” His Lordship would add a similar amendment to s 3B in cases of harassment. The case was remitted to the tribunal to consider the merits of the substantive claim.
UKEAT/71/09;  WLR (D) 314
EAT: Underhill J (President): 30 October 2009
Appearances: Adam Solomons (instructed by Russell Cooke) for Mr Law; Paul Michell (instructed by Bates Wells & Braithwaite) for the employee. EBR Attridge Law did not appear and were not represented.
Reported by: Jennifer Winch, barrister