From The Times November 5, 2009

From The Times November 5, 2009

Associative discrimination falls within European equal treatment directive Employment Appeal Tribunal EBR Attridge Law LLP (formerly Attridge Law) (a Firm) and Another v Coleman

Before Mr Justice Underhill, President Judgment October 30, 2009 The carer of a disabled son who was not herself disabled was entitled to bring a claim of disability discrimination against her employers on the ground of her son’s disability. Following a decision of the European Court of Justice (Case C-306/06) (The Times July 29, 2008; [2008] ICR 1123), on a reference by an employment judge, that associative discrimination fell within the terms of the Equal Treatment Framework Directive (2000/78/EC) (OJ 2000 L303/16), Mr Justice Underhill, sitting alone in the Employment Appeal Tribunal, held that the Disability Discrimination Act 1995 could be interpreted so as to apply to such discrimination as a matter of domestic law. The appeal tribunal dismissed an appeal by EBR Attridge Law LLP (formerly Attridge Law) and Mr Steve Law, solicitor, a partner in the firm, from a decision of Miss M. Stacey, chairman of a South London employment tribunal, sent to the parties on November 26, 2008, that the tribunal had jurisdiction to hear a claim of disability discrimination by the claimant, Ms Sharon Coleman: see also (The Times January 12, 2007; [2007] ICR 654). Section 3A(5) of the 1995 Act, inserted by the Disability Discrimination Act 1995 (Amendment) Regulations (SI 2003 No 1673), provides: “(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances including his abilities, are the same as, or not materially different from, those of the disabled person.” Section 3B provides for discrimination on the ground of harassment. Mr Adam Solomons for Mr Law; Mr Paul Mitchell for Ms Coleman; EBR Attridge Law did not appear and was not represented. THE PRESIDENT said that the European Court of Justice had acknowledged that the Equal Treatment Directive made no express reference to associative discrimination and that its specific provisions appeared to be directed only at cases where the claimant was disabled. But it had held that the objects of the Directive required a broader approach. The employment judge had decided that she was obliged to interpret the statute so as to conform with the effect of the Directive as declared by the Court of Justice, by supplying words if necessary, unless it contained an express and unambiguous indication to the contrary and since there was no such indication she should accept the claimant’s case.

It was a principle of European law that courts of member states should so far as possible interpret domestic legislation in order to give effect to the state’s obligations under European law typically arising under a Directive. There was nothing impossible about adding words to the provisions of the 1995 Act so as to cover associative discrimination. The proscription of associative discrimination was an extension of the scope of the legislation as enacted but it was in no sense repugnant to it. It was an extension fully in conformity with the aims of the legislation as drafted. The concept of discrimination on the ground of disability remained central. It was easier to embody the position about associative discrimination in distinct provisions. To give effect to the reasoning of the court his Lordship would add to section 3A a subsection: “(5A) 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.” His Lordship added a similar amendment to section 3(B) in cases of harassment and remitted the case to the employment tribunal to consider the merits of the substantive claim. Solicitors: Russell Cooke; Bates Wells & Braithwaite.

http://business.timesonline.co.uk/tol/business/law/reports/article6901154.ece