A question of association

The Employment Appeal Tribunal has ruled that the provisions of the Disability Discrimination Act 1995 apply to someone who, while not disabled themselves, has been discriminated against because of another’s disability. Nicholas Dobson examines the decision.

Although as yet un-Attenboroughed, the law is nevertheless an important feature of human life on earth. For, far from being a fixed and lifeless object, it constantly evolves and adapts to meet the ever-changing vagaries and idiosyncrasies of human behaviour.

Disability discrimination is a case in point. Following a decision of the Employment Appeal Tribunal (EAT) on 30 October 2009, it is now clear that despite the precise words of the Disability Discrimination Act 1995 (which apparently limited its reach to disabled persons) the Act in fact applies to those who, whilst not themselves disabled, have nevertheless suffered discrimination because of the disability of another.

Background

The case in question was Coleman v. EBR Attridge Law LLP and another (UKEAT/0071/09/JOJ) and was a decision of Underhill J. Back in August 2005 the Claimant, Ms. Sharon Coleman, had brought proceedings against a law firm then called Attridge Law and Mr. Steve Law (a partner in that firm) claiming ‘associative discrimination’ under the Disability Discrimination Act 1995 as well as unfair dismissal. The Claimant was the primary carer of a son (born in 2002) who needed special care in the light of apnoeic attacks and congenital laryngomalacia and bronchomalacia. Given that the Claimant contended that the effect of Council Directive 2000/78/EC of 27 November 2000 (the Directive, which established a general framework for equal treatment in employment and occupation) was to outlaw such discrimination, the Employment Tribunal (ET) referred the matter to the European Court of Justice (ECJ).

On 17 July 2008 the ECJ held that the Directive did encompass associative discrimination, pointing out (at paragraph 51) that: “Where it is established that an employee in a situation such as that in the present case suffers direct discrimination on grounds of disability, an interpretation of Directive 2000/78 limiting its application only to people who are themselves disabled is liable to deprive that directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee.”

Consequently, the ECJ held (amongst other things) that the prohibition of direct discrimination and harassment in the Directive is not limited only to people who are themselves disabled, but where it is established that the discrimination or harassment is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination.

When the matter came back before the ET it held that the 1995 Act could be construed so as to apply to associative discrimination and therefore the ET had jurisdiction to entertain the Claimant’s claim. The instant issue before the EAT was an appeal against that decision of the ET.

Decision of the EAT on 30 October 2009

In an interesting judgment, which took a good look at the engine workings of this particular area, the EAT (Underhill J, President) upheld the decision of the ET.

The 1995 Act

By section 3A(1) of the 1995 Act a person discriminates against a disabled person if (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply,  and (b) he cannot show that the treatment in question is justified. Section 3B(1) provides that a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of (a) violating the disabled person's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Section 4 of that Act, in addition to making it unlawful for an employer to discriminate against a disabled person in various specified circumstances, (by section 4(3)) also provides that it is unlawful for an employer to subject to harassment (a) a disabled person whom he employs; or (b) a disabled person who has applied to him for employment.

Associative Discrimination

On the face of it, therefore, the 1995 Act would not apply to associative discrimination. But things are not always what they seem and rubbing the lamp can sometimes, as in this case, unleash a hidden genie.

The EAT pointed out the principle of EU law that domestic courts and tribunals should “so far as possible” interpret domestic legislation in order to give effect to the obligations of the member state under EU law, typically arising under a directive. And following the decision of the ECJ in Marleasing SA v La Comercial Internacionial de Alimentacion SA [1990] ECR I-4135, it is now well established in UK law that in accordance with that obligation a court or tribunal can in some circumstances go beyond the traditional strict limits of statutory construction and can read words into a statute in order to give effect to EU legislation which the statute was evidently intended to implement.

Underhill J also referred to the decision of the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 AC 557 which extended tenancy succession to accommodate same-sex tenants by the addition of wording to the relevant statute. In that case the House was concerned with the extent of the obligation under s. 3 (1) of the Human Rights Act 1998 to read and give effect to UK legislation “so far as it is possible to do so” in a way which is compatible with Convention rights. This was submitted by Counsel for Ms. Coleman to be "substantially identical" to the above EU principle.

In Ghaidan Lord Nicholls had said that section 3 of the 1998 Act "is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant". However, this is provided that the meaning imported by application of section 3 is compatible with the underlying thrust of the legislation being construed. In other words, as Lord Rodger pointed out in the same case, the words implied must “go with the grain of the legislation”.

Underhill J considered that the situation with which he was concerned was “closely analogous”. For: “The proscription of associative discrimination is an extension of the scope of the legislation as enacted, but it is in no sense repugnant to it. On the contrary, it is an extension fully in conformity with the aims of the legislation as drafted. The concept of discrimination ‘on the ground of disability’ still remains central.”

And, although the ECJ decision specifically dealt with the case of an employee who was the carer for a disabled child Underhill J considered it “.. . .desirable in the present case to attempt to extract from the Directive as interpreted by the Court the relevant general rule and to express it in quasi-statutory language”. He therefore suggested the addition of a sub-section (5A) to section 3A as follows: “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.”

Underhill J also suggested adding to section 3B (dealing with harassment) a subsection (3) to similar effect. For in his view: “What matters is that the putative victim has suffered adverse treatment on a proscribed “ground”, namely disability, and the fact that the disability is not his own is not of the essence. . .”.

Consequently, the EAT dismissed the appeal and remitted the case to the ET to consider ‘at last’ the merits of the Claimant’s substantive claim.

Comment

This decision (and that of the ECJ before it) does considerably extend the reach of disability discrimination law. Whilst it will clearly be welcomed by all those caring or otherwise responsible for disabled persons, employers will need to ensure that they treat such employees compatibly with the 1995 Act as now interpreted.

Attridge is also a useful reminder of the pervasive nature of EU law and that (despite the historic textual tradition of UK common law) reading the EU runes is not necessarily straightforward and may require some Delphic delving by those learned in the lore of the EU project.

Nicholas Dobson is a lawyer specialising in local and public law and is also the Communications Officer for ACSeS – the Association of Council Secretaries and Solicitors.

A version of this article is also published on Lawtel.