Another disability

Attridge Law LLP v Coleman

Given that the whole point of the 1995 Disability Discrimination Act (DDA) is to provide protection against discrimination on the ground of someone’s disability, the Employment Appeal Tribunal (EAT) has decided in Attridge Law LLP v Coleman that the statute can be read to include discrimination relating to “the disability of another person”.

Basic facts

Mrs Coleman, a legal secretary, gave birth in 2002 to a disabled son who required specialist care. She claimed that her employer refused to allow her to return to her previous job when she came back from maternity leave; refused to allow her to work flexibly; and subjected her to abusive and insulting comments about her child.

Mrs Coleman claimed disability discrimination under the DDA, among other things. Her employer said that she could not bring a claim under the Act because it only covered disabled people and she was not disabled.

Earlier court hearings

The tribunal referred the matter to the European Court of Justice (ECJ) which said that the Equal Treatment Directive should be interpreted as protecting employees who, although not themselves disabled, nevertheless suffered discrimination or harassment because they were associated with a disabled person.

The case then came back to the tribunal to decide whether the DDA could be read in such a way to give protection against associative discrimination without distorting the statute. It said that references to a disabled person in sections 3A(5) and 3B of the DDA could be read as if they included the words “or a person associated with a disabled person”.

The employer appealed again, arguing that the tribunal had effectively rewritten the Act. They also argued that as member states did not have to comply with the directive until December 2006, the Courts were not bound by the “Marleasing” principle in relation to domestic law. (This was a reference to a case which stated that it was the duty of member states to achieve the objectives of a directive).

EAT decision

However, the EAT disagreed. It said that it was clear from the Supreme Court decision in Ghaidan v Godin-Mendoza that courts and tribunals are obliged “so far as possible” to interpret domestic statutes in such a way that they give effect to EU law.

Applying that approach, the EAT said that there was nothing “impossible” about adding words to the provisions of the 1995 Act so as to cover associative discrimination. Even if that involved changing the meaning of the Act, that was not, in itself, “impermissible”. The real question was whether it would do so in a manner which was not “compatible with the underlying thrust of the legislation” or which was “inconsistent with the scheme of the legislation or its general principles”.

In this case, the EAT felt that although outlawing “associative discrimination” extended the scope of the legislation, it was “in no sense repugnant to it”. On the contrary, it was an extension “fully in conformity with the aims of the legislation as drafted” as the concept of discrimination “on the ground of disability” remained central to it.

Commenting that the tribunal judge’s re-drafting was not “quite right”, the EAT said it would want to re-draft the statute so that a sub-section (5A) was added to section 3A which included treating someone less favourably “by reason of the disability of another person”.

Likewise it would add a sub-section (3) to section 3B so that so that someone who was harassed “for a reason which relates to the disability of another person” would also be protected.

Finally, the EAT decided that the Marleasing obligations must bite at the moment that the regulations implementing the directive came into force in 2004, rather than December 2006, the date by which member states had to comply with the directive.