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Discrimination by Association

» Posted on: 3 February 2008
» Posted by: Oliver McCann
» Service area: Employment

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Extension of Workers Rights

Millions of workers who care for disabled dependants are on the verge of acquiring new rights not to be discriminated against because of their association a disabled dependent. The Disability Discrimination Act 1995 gave significant new rights to disabled workers/prospective workers when it came into force. What it did not do, and still does not do, is provide rights to those who care for disabled people not to be discriminated against due to their association with a disabled person.

Sharon Coleman took her case to the European Court of Justice after her claim was remitted to that court by the Employment Tribunal as it related to the interpretation of European Directives.

Her claim against he employer was based on the allegation that she was discriminated against by reason of her time off work to care for her disabled son, who suffered from severe respiratory problems. Her request for flexible working arrangements were turned down (whilst others were granted). Her manager allegedly accused her of being lazy and using her son’s condition to get out of work. Sick and tired of this treatment towards her she felt forced into to taking voluntary redundancy in 2005.

The Advocate General, who provides his opinion to the ECJ before the hearing takes place, stated that EU equality law does cover discrimination by association. Such laws are designed to protect those minorities and discrimination by association is a subtle form of discrimination against those minorities.

The opinion of the Advocate General is followed by the ECJ 4 times out of 5 and as such Sharon Coleman will be very optimistic that the ECJ will find in her favour and at the same time create a new branch of discrimination which will have far reaching effects on the employment field.

If the ECJ do find in Sharon Coleman’s favour the next step is for her to see whether UK courts are prepared to interpret UK law in the same way by implying additional wording into the legislation with the aim of achieving the purpose of the European Directive. It may ultimately lead to a change of all discrimination laws, not just disability.

Serious Consideration
Any business which is facing requests now from carers of disabled people should give serious consideration to whether or not they can justify turning the request down on genuine business reasons. A failure to do so may lead to an inference that it is discrimination by association.

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