Pearson Hinchliffe Solicitors - Professional Understanding - Advising - Supporting - Delivering

E-mail: enquiries@pearson-hinchliffe.co.uk | Telephone: 0161 785 3500

Coleman v Attridge Law: DDA to include associative discrimination

In Coleman v Attridge Law a tribunal has held, at a pre-hearing review, that the Disability Discrimination Act 1995 (DDA) is capable of being interpreted so as to protect people associated with a disabled person from discrimination or harassment. The case will now proceed to a full hearing to decide on the substantive merits of the claim.

C is not disabled herself, but cares for her disabled son. When she sought to take time off to care for him, her employer called her 'lazy' and accused her of attempting to manipulate her working conditions. C brought claims under the DDA, arguing that she had suffered discrimination by association with her son's disability. Caught between the wording of the DDA, which on a literal reading does not cover such discrimination, and that of the Equal Treatment Framework Directive (No.2000/78), which suggests that it should, the tribunal referred the case to the ECJ for a preliminary ruling. The ECJ held (Brief 860) that the Directive should be interpreted as protecting those who, although not themselves disabled, nevertheless suffer discrimination or harassment owing to their association with a disabled person. The case then returned to the tribunal to determine whether the DDA could be read in such a way as to give effect to the Directive.

The tribunal was satisfied that the Disability Discrimination Act 1995 (Amendment) Regulations 2003, which amended the definition of discrimination and harassment in the DDA, were intended to put the Directive into full effect, as evidenced by the accompanying explanatory memorandum. The ECJ made clear that the Directive covers associative discrimination and so, in the absence of express and unambiguous indications to the contrary, the DDA, as amended by the 2003 Regulations, must also share that purpose. In the tribunal's view, the omission of any reference to individuals who suffer associative discrimination from the DDA was not sufficient to amount to an unambiguous indication that the DDA was not intended to cover such individuals.

The tribunal therefore decided to read references to a disabled person in Ss.3A(5), 3B and 4 of the DDA as if they included the words 'or a person associated with a disabled person'. This was compatible with authorities such as Ghaidan v Godin-Mendoza 2004 2 AC 557, HL, on interpreting domestic legislation in accordance with EC law. The tribunal therefore found the DDA to be capable of an interpretation protecting against associative discrimination, without distorting the words of the statute.

The case will now go forward for a full hearing, However, the tribunal will only be able to consider C's complaints in so far as they relate to matters taking place from 1 October 2004 onwards. The tribunal held that it did not have jurisdiction to consider previous allegations, as the 2003 Regulations were not in force at that time.

The case will be reported in due course on our websitre

Source: South London Employment Tribunal 26/11/2008.

For further guidance and advice, please click here to contact a specialist employment lawyer.

Pearson Hinchliffe Commercial Law | Hollinwood Business Centre, Albert Street, Hollinwood, Gtr Manchester, OL8 3QL
Telephone: +44 (0)161 785 3500, Fax: +44 (0)161 624 2589, Email: enquiries@pearson-hinchliffe.co.uk