The European Court of Justice has given a judgment today to the effect that the “Employment Directive”, 2000/78, which outlaws discrimination at work on grounds including disability, does not simply outlaw discrimination against disabled workers but extends to protecting the non-disabled mother of a disabled child.
Sharon Coleman says that after she gave birth to her disabled son her employers, a firm of solicitors (whoops!) didn’t allow her to go back to her old job or to work flexibly, whereas they had allowed the mothers of non-disabled children to do so. She also alleges she was harassed because of her son’s disability, and that she was forced to resign. She is claiming unfair constructive dismissal and disability discrimination.
In my view the ECJ is clearly right in its interpretation of the Directive. Article 2 makes it clear that the principle of equal treatment in the Directive means that there shall be no discrimination whatsoever on any of the prohibited grounds, including disability; it goes on to define direct discrimination as happening where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the prohibited grounds. None of that seems to me to limit the concept of discrimination to cover only discrimination against a disabled worker. The Directive bans discrimination on grounds of disability and so it is irrelevant whether the mother herself is disabled. The question is whether she’s been discriminated against on grounds of disability.
As Advocate General Poiares Maduro rightly put it at paragraph 22 of his Opinion (the emphasis is his):
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… This fact does not change in cases where the employee who is the object of discrimination is not disabled herself. The ground which serves as the basis of the discrimination she suffers continues to be disability. The Directive operates at the level of grounds of discrimination.
I think it was pretty hopeless for the UK to argue against this: the arguments it used are pretty pathetic. And I think the result means the Disability Discrimination Act 1995 will need to be amended again since the section 3A(1) definition of discrimination
a person discriminates against a disabled person if–
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply
and the section 3A(5) definition of direct discrimination,
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.
both limit the concept of discrimination to discrimination against a person on grounds of his or her disability. I suppose the Tribunal might be asked to apply an extremely strained reading of the Act according to which the employer has discriminated against the son on grounds of his disability, by sacking his mother; but that seems too much of a stretch to me. Ms. Coleman’s claim may, ultimately, be not against her employer but against the UK itself for damages for non-implementation of the Directive.
Here are today’s Times and Telegraph articles about the case.
I think it is now right to say that even if the DDA 1995 is not amended it becomes possible for some employees to rely on the Directive as interpreted by the ECJ. This must be so in relation to employees of the State or “emanations of the State” but what of others?
Yes, Peter: civil servants, local government employees, teachers, NHS employees and so on will be able to rely on the Directive’s direct effect.
It’s more difficult for others like Ms. Coleman, though, who work in the private sector. For them, the Directive doesn’t have direct effect; and given the way the DDA is drafted, it’s unlikely they can succeed using its indirect effect i.e. the duty of the UK courts to interpret our own legislation (the DDA) as far as is possible consistently with the purpose of the Directive. They may well think it’s not possible to strain the DDA, which clearly is intended only to protect disabled workers themselves, quite that far.
In which case, these people need to take legal action against the UK for damages for non-implementation of the Directive.
I imagine the government will amend the DDA quite rapidly, though, so there won’t be a backlog of these cases. The trickiest issue will be how to deal with Ms. Coleman herself, but I suspect it’s a question of the government having to step in and offer her a settlement.