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Associative Discrimination

You will all of heard of the various types of discrimination i.e. sex, race, disability, age, religion or belief, disability, sexual orientation, but what of associative discrimination? What, you may ask, is that? Well, associative discrimination is a very real risk for employers in their dealings with employees.

On 30th October 2009, the Employment Appeal Tribunal handed down a Judgment in the long running case of EBR Attridge Law LLP v Coleman. Mrs Coleman had been a Legal Secretary in a firm of solicitors originally known as Attridge Law. She resigned in March 2005, alleging unlawful discrimination by her employers on account her son’s disability, for whom she was the principal carer.

The claim was brought under the Disability Discrimination Act 1995, which does not, upon the face of it, apply to associative discrimination. Mrs Coleman stated that the relevant EU Directive was to outlaw such discrimination and that the Employment Tribunal could construe the Disability Discrimination Act accordingly.

The Employment Tribunal referred initially to the European Court of Justice, requesting whether associative discrimination was within the EU Directive. There then followed considerable litigation, but eventually in July 2008, the European Court of Justice held that associative discrimination did fall within the terms of the EU Directive.

Consequently, the case came before the Employment Tribunal, which ruled that it had jurisdiction to entertain Mrs Coleman’s claim. Her former employers appealed against that ruling, bearing in mind of course that her full claim has not yet been determined and this was the Judgment in respect of that appeal which was handed down on 30th October 2009.

In that Judgment the President of the Employment Appeal Tribunal ruled that the Disability Discrimination Act 1995 can be interpreted so as to apply to associative discrimination. In making that Judgment, the Judge, in essence, amended the statute to give effect to the reasoning of the European Court of Justice by adding a new subsection in the following terms.

“A person also directly discriminates against a person if he treats him less favourably that he treats or would treat another person by reason of the disability of another person”.

Consequently, Mrs Coleman’s claim will now proceed, but the risk to employers is clear that if they discriminate against an employee because that employee is the carer for someone who is disabled, then there is the risk of a claim.

For further employment law advice please contact the ELAS Helpline on 0161 785 2000.

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