EBR Attridge Law LLP and Anor v. Coleman (No: UKEAT/0071/09)
In the long-running saga of Coleman v Attridge, the EAT has upheld the Employment Tribunal’s decision that wording should be read into the Disability Discrimination Act 1995 (“DDA”) to cover direct discrimination and harassment based on a third party’s disability.
Ms Coleman brought a Tribunal claim alleging that her former employer, EBR Attridge Law LLP (“Attridge”), and one of its partners had subjected her to direct discrimination and harassment because she was the primary carer of her disabled son. The issue in this case was whether the DDA covers associative discrimination. The substantive merits of Ms Coleman’s allegations have not yet been determined by the Tribunal.
The DDA prohibits discrimination in employment against a “disabled person” and harassment relating to the “disabled person’s” disability. As currently drafted, the DDA does not expressly protect a non-disabled individual from discrimination or harassment based on their association with a disabled person.
In this case, the Employment Tribunal asked the ECJ whether discrimination by association fell within the bounds of the Directive. In 2008, the ECJ held that, although the wording of the Directive does not specifically prohibit discrimination by association, national courts were required to look at the grounds for the discrimination, rather than the category into which the victim fell and, therefore, the Directive should be interepreted to prohibit direct discrimination and harassment on grounds of disability in respect of a person who is not disabled but is a primary carer of a disabled child.
The EAT has now confirmed the principle that the Courts and Tribunals have to interpret UK law “in so far as possible” in order to give effect to EC law. The EAT concluded that the Tribunal was, therefore, entitled to add words to the DDA so as to cover discrimination by association.
The ECJ had limited its decision to the case of an employee who is the carer of a disabled child. However, the EAT were of the view that the decision was applicable more generally.
The EAT added two sub-sections to the DDA to provide that:
- “A” directly discriminates against “B” if A treats B less favourably than A would treat “C” by reason of the disability of another person.
- “A” harasses “B” where, for a reason which relates to the disability of another person, A engages in unwanted conduct which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
What this means in practice
The decision gives an interesting insight into the lengths to which Courts and Tribunals consider they may go in interpreting domestic legislation in light of a Directive. In achieving this aim, Courts and Tribunals are not bound by the actual wording used by Parliament, but must consider the general rationale or “spirit” of the legislation, which should be read in light of Parliament’s intention to comply with EU law. Accordingly, Courts and Tribunals may add statutory wording where necessary.
In respect of disability discrimination, while this decision will clearly benefit the carers of disabled people, the EAT has made it clear that the decision is not limited to carers or even those associated with a disabled person, and covers direct discrimination or harassment based on the disability of any third party.
Employers should note, however, that the decision is confined to direct discrimination and harassment. This position is continued under the Equality Bill drafting, which does not include discrimination by association in relation to indirect discrimination, discrimination arising from a disability and the duty to make reasonable adjustments.
Therefore, an employer will not discriminate against an employee if it:
- fails to make adjustments to its practices, premises etc. in response to a disadvantage suffered by an employee caring for a disabled person (for example, by providing extra leave, adjusting working hours or changing a work location (although this may need to be considered under a flexible working request in relation to a disabled child)); or
- puts in place practices which apply equally to all employees, but which put employees associated with disabled persons at a disadvantage.