The Employment Appeal Tribunal has issued its judgment on the case of Coleman v Attridge regarding the issue of associative discrimination.
The EAT has upheld the tribunal's decision to reinterpret the Disability Discrimination Act to prevent discrimination and harassment on the grounds of associative discrimination. The EAT achieved this by:
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adding a new sub-section (5A) to section 3A - 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;
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adding a new sub-section (3) to section 3B - A person also subjects a person (A) to harassment where, for a reason which relates to the disability of another person (B), he engages in unwanted conduct which has the purpose or effect of - (a) violating A's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Sub-section (2) applies to this sub-section, save that the relevant perception is that of A.
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amending sections 4(1) and (2) - to add in the introductory words after 'a disabled person' the phrase 'or in a case falling with S.3(5A), any person'.
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amending sections 4(3)(a) and (b) - to add after 'a disabled person' the phrase 'or in a case falling with S.3B(3), any person'.
As a result, it will now be possible for claims to be made on the grounds of a discrimination due to association with a disabled person, for example an employee being discriminated against or harassed because they are the parent of a disabled child.
One of the areas we are already seeing associative discrimination raised is in relation to redundancy selection criteria e.g. employees claiming that their absence history should be disregarded because it relates to time they have taken off to care for a disabled child. We envisage case law will emerge before long addressing these kind of issues.
Can you think of other examples when associative disability discrimination might be an issue?
Rita Nissiphorou wrote:
Unfortunately the EAT specifically stated that these amendments to the DDA would not apply to the employer's obligations to make reasonable adjustments. Therefore in this instance the employer would not be obliged to make such an adjustment to accomodate and adult carer. However, an alternative course of action may be to make an application for flexible working. There are eligibility requirements and once an alteration has been made to a contract of employment then the change is permanent but it may be the appropriate solution. For further information on flexible working see: http://www.direct.gov.uk/en/employment/employees/workinghoursandtimeoff/dg_10029491 or ACAS provide a leaflet which can be found at http://www.acas.org.uk/index.aspx?articleid=803.
Rita Nissiphorou wrote:
Unfortunately the EAT specifically stated that these amendments to the DDA would not apply to the employer's obligations to make reasonable adjustments. Therefore in this instance the employer would not be obliged to make such an adjustment to accomodate and adult carer. However, an alternative course of action may be to make an application for flexible working. There are eligibility requirements and once an alteration has been made to a contract of employment then the change is permanent but it may be the appropriate solution. For further information on flexible working see: http://www.direct.gov.uk/en/employment/employees/workinghoursandtimeoff/dg_10029491 or ACAS provide a leaflet which can be found at http://www.acas.org.uk/index.aspx?articleid=803.
Paul Lee wrote:
Can this new sub-section be applied to an employee who seeks a reasonable accomodation so as to work a four day week to care for a disabled wife, where his employer insists on a five day week? The ECJ Ruling does not help, but this revision to the DDA appears to do so.