Discrimination by association comes a step closer

Sharon Coleman, the mother of a disabled child, took a  step closer to securing a ruling in the European Court of Justice (ECJ)that could herald new rights for those who care for disabled people after the Advocate General (AG) gave an opinion  that  the Equal Treatment Directive prohibits  discrimination by association with disability.

Sharon Coleman, whose son Oliver was born with a rare condition affecting his breathing and was also deaf, brought a case claiming she was forced to resign from her job as a legal secretary after, she alleges, being harassed by her employers and refused flexible working. She believes she was specifically targeted because she has a child with a disability, and was denied the flexible work arrangements offered to her colleagues without disabled children. 

Ms Coleman’s case, which is being supported by the Equality and Human Rights Commission, was referred to the ECJ by an employment tribunal in order to determine if ‘disability discrimination by association’ is unlawful.  

Robin Allen QC told the AG that during Ms Coleman’s employment at Attridge Law Solicitors, she alleges she was subjected to a range of discriminatory acts. These included the following:       

• She was criticised for seeking to take parental leave at the end of her maternity leave, in the circumstances where the parent of a non-disabled child would not have been so criticised.       
• On returning from maternity leave she was not allowed to return to her existing job, where the parent of a non-disabled child would be able to return.         
• Comment was made that her ‘f*****g child’ was “always f*****g sick” and that she was using her child to manipulate her work conditions.       
• She was criticised and described as ‘lazy’ when she sought to take time off to care for her child, whereas others were allowed time off for childcare for their non-disabled children.       
• She was late on occasion, because of problems with care for her child. She was told she would be sacked if she came to work late. No such threat was made in the case of other employees with non-disabled children who were late because of childcare problems. 

The AG explained: “Directly targeting a person who has a particular characteristic is not the only way of discriminating against him or her; there are also other, more subtle and less obvious ways of doing so. One way of undermining the dignity and autonomy of people…is to target not them, but third persons who are closely associated with them, i.e. discrimination by association.” 

The AG’s opinion now needs to be ratified by ECJ, who normally follow the AG’s lead. If the ECJ agrees, then changes will have to be made to the UK’s age legislation as well as disability, since the same legal principle applies.