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Associative Discrimination: Equal Treatment?

About The Author

Hannah Larsen (Writer)

Hannah graduated from the University of Bristol in 2013, with a LLB Hons. Hannah works for an organisation issuing multinational employers with guidance on employment law and labour relations across the globe, and is undertaking her BPTC part-time at BPP Holborn.

The principle of equal treatment is relatively self-explanatory; people should be treated equally and no one should be discriminated against on the basis of characteristics, such as religion, belief, disability, age and sexual orientation. This article will explore whether the protection against discrimination provided by the principle extends to protect those who are associated with a disabled person.

Equal treatment is protected on a European Union level in the Council Directive 2000/78/EC (“the Directive”), which introduced a framework to combat discrimination in the workplace, when seeking employment and in the membership of organisations. The Directive has effect in the public and private sectors prohibiting direct discrimination, indirect discrimination and harassment. It also requires employers to make reasonable adjustments for disabled persons and allows Member States to implement measures for positive action.  This inclusive approach is emphasised by the Directive’s reference to the Community Charter of the Fundamental Social Rights of Workers and in particular the prohibition of ‘every form’ of discrimination (the Directive, Recital 6).

The Directive was implemented in the United Kingdom through the Equality Act 2010, which was welcomed by Collins, Ewing and McColgan (pg. 312) as a replacement for the ‘previously complex and incoherent mess of legislation’. The Act extends slightly beyond the reach of the Directive as it provides protection for additional characteristics, applies in arenas outside of employment e.g. housing, and requires public bodies to promote equality.

Despite the breadth and strong approach of the Directive and the Equality Act 2010, neither makes explicit provision for persons who suffer discrimination as a result of their association with a disabled person, commonly referred to as ‘associative discrimination’. This article will highlight what protection is afforded to a victim of associative discrimination in a review of what has and has not been established in the case law of the Court of Justice of the European Union (CJEU) and the UK’s Court of Appeal.

What has been established?

In Coleman v Attridge Law [2008] C-303/06, the Court of Justice established that direct discrimination and harassment as a result of a person’s association with a disabled person is prohibited.

The case concerned an employee whose son suffered from severe respiratory problems and consequently required specialist care. The employee, who was the primary carer of her son, claimed that she had been subject to unfavourable treatment and harassment by her employer because of her son’s disability. Instances of discrimination included rejection of her requests for flexible working and a refusal to allow her to resume her former job after maternity leave, both of which were permissible for other employees who did not have a disabled child. The employee additionally alleged harassment on the grounds of repeated derogatory comments made about her and her son.

The Court of Justice held, contrary to the beliefs of the UK, Italian, Greek and Dutch governments, that the employee was entitled to protection from direct discrimination and harassment. It added that if such protection was not provided the effectiveness of the Directive would be undermined.

As a result of the judgment, words were necessarily interpolated into the Disability Discrimination Act (a predecessor of the Equality Act) by the Employment Tribunal to prohibit associative discrimination and harassment. This prohibition is now explicitly contained within the Explanatory Notes to the Equality Act (section 13).

In contrast it has also been established by the Court of Appeal, in Hainsworth v Ministry of Defence [2014] EWCA Civ 763, that employers are not under a duty to make reasonable adjustments for an employee associated with a disabled person. 

The appellant, an employee whose daughter suffered from Down’s syndrome, had requested a compassionate transfer to another workplace to enable her daughter to access specialist education facilities. The appellant’s employer refused the request. The appellant claimed that the employer had breached their obligation to make reasonable adjustments. The parties had already agreed at the Employment Appeal Tribunal that the Equality Act did not confer on the employer the duty to make reasonable adjustments for associated persons. The appellant was however able to rely on the Directive itself; it had been established by the CJEU that when a court is considering a domestic provision, it must interpret it ‘as far as possible in the light of the wording and the purpose of the directive’ (Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] C-106/89, paragraph 8). In addition, the doctrine of direct effect ensures that citizens of the EU are able to enforce their rights against the Member States. As the Ministry of Defence is a public body (‘an emanation of the state’ as per Foster v British Gas Plc. [1990] Case C-188/89, see paragraph 20) and the other necessary conditions were satisfied, the Directive was directly applicable.

Lord Justice Laws held that Article 5 of the Directive was limited to employees, prospective employees and trainees, similar to the Section 20 of the Equality Act. To extend the Article to protect associated persons would be ‘hopelessly uncertain’, and where an attempt was made to use Article 5 to protect an associated person it was ‘doomed to failure’. In addition, his Lordship specifically referred to Recital 20 of the Directive that highlights anticipated adjustments, such as the adaptation of the workplace to the disability.

What has yet to be established?

Lord Justice Laws commented in Hainsworth: ‘the concept of association is of itself vague and open-ended’. His Lordship did not choose to explore the concept himself, except to mention that proximity would become critical if the beneficiaries of an employer’s duty to make reasonable adjustments were to include more than the disabled persons themselves. Laws LJ briefly mentioned the necessity of legal certainty, which if discussed further might have suggested the need for a definition of, or at least boundaries for, qualification as an associated person.

However, it is questionable whether such a definition is actually required in practice. For example, in Coleman it is clear that the claimant suffered direct discrimination herself; the fact that the claimant’s child was disabled was merely the cause, and the ‘exact relationship was not critical to [the] proof of the cause’ (Hainsworth, para 27). Further, in Coleman, the CJEU somewhat dismissed the requirement of a relationship, stressing that equal treatment applies in respect of the grounds rather than a particular category of person.

In addition, there are still outstanding questions as to the breadth of protection provided to associated persons. For example, it has yet to be established whether victims of indirect discrimination by association will be able to seek protection. Indirect discrimination occurs where a provision, criterion or practice (PCP) disadvantages a person or group of people who share a protected characteristic when it is put into practice. This unlawful conduct may however be excused, if the employer can objectively justify the PCP as a ‘proportionate means of achieving a legitimate aim’ (Equality Act 2010, section 19).

Advocate General Maduro had commented in Coleman that associated persons claiming protection from indirect discrimination may never be successful in such a claim. In contrast, although the CJEU did not go on to comment on indirect discrimination specifically, it highlighted the limitation of the duty to make reasonable adjustments to persons who are themselves disabled (discussed above) compared with other protections which are not expressly limited. As a result, Andrew Clarke QC and Katherine Apps have reflected on this ‘broad brush approach’, suggesting that associated persons are likely to be able to invoke other rights or protections provided by the Directive.

Conclusion 

Victims of associative discrimination may seek protection against direct discrimination and harassment. An employer is not, however, under a duty to make reasonable adjustments for persons associated with a disabled person. Although the case law has come a long way in establishing what protections are afforded to victims of associative discrimination, it is clear that further legislation or litigation will be required to shed light on the other protections provided by the principle of equal treatment. The degree of proximity required for an association may also need to come under scrutiny.

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Tagged: Commercial Law, Discrimination, Employment Law, European Union

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