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The case of Coleman v Attridge Law, referred to the European Court of Justice in 2006, has this month (July, 2008) produced a ruling with potentially far reaching implications for employers. The ECJ was led to rule that primary carers have the same rights against employment discrimination as disabled people.
Sharon Coleman, resigned from her job as a legal secretary for Attridge Law in London in 2005. As primary carer for her 5-year-old disabled son, she alleged disability discrimination, under the Disability Discrimination Act 1995 and the Directive, claiming she was treated less favourably than employees with non-disabled children and refused the same flexibility of working hours as them.
In January 2008 The Advocate General considered that such direct discrimination is prohibited. "The effect of the Directive is that it is impermissible for an employer to rely on religion, age, disability and sexual orientation in order to treat some employees less well than others...if someone is the object of discrimination because of any one of the characteristics listed in Article 1 then she can avail herself of the protection of the Directive even if she does not posses one of them herself. It is not necessary for someone who is the object of discrimination to have been mistreated on account of ‘her disability’. It is enough if she was mistreated on account of ‘disability’. Thus, one can be a victim of unlawful discrimination on the ground of disability under the Directive without being disabled oneself...The Directive does not come into play only when the claimant is disabled herself but every time there is an instance of less favourable treatment because of disability. Therefore, if Ms Coleman can prove that she was treated less favourably because of her son’s disability she should be able to rely on the Directive."
Since then the ECJ has confirmed the Advocate General's opinion on the Directive deciding that 'discrimination by association' can be illegal in the workplace. The ECJ also said the prohibition of direct discrimination "is not limited only to people who are disabled".
The case has significant implications for the rights of carers and others who are “associated” with disabled people, even though they themselves are not disabled.
This protection will dramatically strengthen the rights of carers who at present only have the right to request flexible working.
John Cridland, from the Confederation of British Industry, said "This appears to be a significant new employment right for the carers of the disabled, and will leave employers in difficulty when prioritising flexible working between carers of disabled people, and other carers and parents."
Susan Mayall, Employment solicitor at Pearson Hinchliffe Commercial Law, said "this is a highly significant decision from the European Court with important and wide-reaching implications, not only for disabled workers and their employers, but other groups covered by existing legislation.
"Conceivably, an employee who suffers insults or harrasment because he or she has a gay son or daughter should be protected under sexual orientation discrimination laws".
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Notes to Editors
Pearson Hinchliffe Commercial Law is a commercial law practice providing a range of legal services to business and commercial clients in Oldham and across the North West. The firm's specialities include Company & Commercial, Employment Law, Commercial Litigation and Commercial Property matters.
As one of the leading law firms in the North of England, Pearson Hinchliffe’s mission is to be ‘the complete law firm’ providing the highest quality legal services to its clients. It does this by offering practical and cost effective, high quality legal advice for a wide range of clients. Each client is catered for as an individual with their business and personal requirements taken into account which allows for a highly personalised service.
For more information on this article or Pearson Hinchliffe Commercial Law, please contact a member of the marketing communications team on +44 (0)161 785 3500 or email muhammed.shaikh@pearson-hinchliffe.co.uk
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