Dear List

Sections were added to the DDA legislation on the basis of this case circa
2008.  See the implications for employers last few paragraphs which
indicate that robust policies and procedures are key.

'Coleman v Attridge Law

Sharon Coleman worked as a legal secretary for Attridge Law Solicitors
from January 2001. In 2002 she gave birth to a disabled child for whom she
was the primary carer. In 2005 she accepted voluntary redundancy and
brought a claim in the Employment Tribunal for constructive unfair
dismissal and disability discrimination. She argued that she had been
treated less favourably than other employees because she was the primary
carer of a disabled child.

Ms Coleman argued at the tribunal that the European Commission Directive
2000/78, known as the equal treatment directive, had not properly been
transposed into UK law in the form of the Disability Discrimination Act
(DDA).

She claimed that the Directive allowed her to bring a claim for less
favourable treatment and harassment because of her association with her
disabled son. This is because the Directive prohibits discrimination on
the grounds of religion or belief, disability, age or sexual orientation.

The employment tribunal referred her case to the European Court as this
point needed to be decided before it could come to any of her allegations
of less favourable treatment.

The European court held that although the provisions relating to
reasonable accommodation or adjustments in the workplace can relate only
to disabled people, this does not mean that the provisions prohibiting
direct discrimination and harassment must relate exclusively to disabled
people.

Agreeing with Ms Coleman’s argument the court held that ‘where it is
established that an employee in a situation such as that in the present
case suffers discrimination on the 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”.

Legal implications for employers
It has been possible to bring claims for associative discrimination
against public sector organisations since the ECJ decision.

The Employment Tribunal, however, had to consider whether Ms Coleman could
bring her claim against Attridge Law, a private sector employer under the
DDA. The Employment Tribunal decided that it could read words into the DDA
to prohibit associative discrimination.

Attridge Law appealed to the EAT against this decision arguing that the
Tribunal had ‘distorted and rewritten’ the DDA. The EAT has, however,
upheld the Tribunal’s decision and has added the following sections to the
DDA

3A(5A) A person also 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.

And a new sub-section (3) to s. 3B:

(3) 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.

Claims for associative discrimination can now be made against both public
and private sector organisations.

EFD says that employers who have good policies in place that are well
implemented have little to fear from this decision. There is no obligation
on employers to make reasonable adjustments for non-disabled employees.

They must, however, ensure that they do not directly discriminate against
or harass an employee on the grounds of disability e.g. because they care
for a disabled person or have a partner who is HIV positive'

Source: EDF

Best wishes

Catherine



> I wonder if the list is aware of this,
>  If you care for a disabled adult, there is also an argument that you
are
>  protected by disability discrimination. You could argue this if you
> feel you are being treated unfairly because of your caring
> responsibilities. .
> Now I admit I was not aware of this found on;
>
> http://www.workingfamilies.org.uk/articles/parents-and-carers/caring-for-disabled-adults-and-children/faq/what-should-i-do-if-i-have-to-change-my-work-pattern-or-hours-because-of-my-caring-responsibilities
which appears a reputable website.
> It was my.."can not work before 10am" person for whom I was seeking
extra
> information that made me stumble across this , as she is also a carer.
>
> Thank you for your help, as a lone worker it is invaluable and all have
a
> good weekend :)
> Jane
>
>
>
>
>
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Catherine Mackay
Work & Health Consultant
MSc(Work Psychol.)Grad.IOSH
c.  +44(0)7956439163
l:  +44(0)1314454448
c.  +44(0)7956439163
e:  [log in to unmask]
w:  cmkworkandhealth.com(under reconstruction)

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