Disability Discrimination by Association

10 Sep

I have recently had to advise on a case of third party discrimination. I have described it as third party discrimination as it was not in fact the employee who was the one with the protected characteristic, it was her child.

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I have recently had to advise on a case of third party discrimination. I have described it as third party discrimination as it was not in fact the employee who was the one with the protected characteristic, it was her child.

It is not uncommon for carers of disabled children or other relatives to take time off to care. This blog post is not intended to cover flexible working, indirect sex discrimination claims or specific carer agreements. It instead concentrates on how Tribunals have been approaching the disability discrimination angle. A bit of background would be helpful at this point.

A few years ago Sharon Coleman brought a claim against her employer claiming not that she had been discriminated against personally but that she had been targeted because of her son’s disability. What she was seeking to do was to extend the protection from discrimination to cover people who suffer discrimination because they are related or connected to disabled people.

Sharon Coleman’s case went all the way to the European Courts of Justice who found that the Equal Treatment Directive (the European law version of our domestic discrimination legislation) did cover what has become known as ‘discrimination by association’. After a bit more to and fro in the domestic courts it was accepted that the Disability Discrimination Act 1995 covered this type of claim.

Recent case law has confirmed that S 13 Equality Act 2010 (direct discrimination) covers discrimination by association. There is however a sting in the tail and that is that because the claim must be by way of direct discrimination the protection is very limited in scope. An attempt was made in Hamworthy v Ministry of Defence [2014] EWCA Civ. 763 to extend the protection to include reasonable adjustments but this was firmly rejected by the Court of Appeal as a step too far.

There is ‘no arising from’ protection either which would have covered a carer taking time off. Taking time off would be something that arose from a disability but S 15 Equality Act 2010 applies only if the disability is the employee’s and not to a disabled person that employee might have to care for.

So in fact penalising an employee for taking time off to support a disabled person is quite lawful from a disability discrimination stand point so long as the employer would have penalised anyone else taking time off in a similar circumstances e.g. a critical shift at a busy period such as Christmas or New Year. This is because it is the time taken off which is being targeted and not the reason for it.

I would nevertheless strike a note of caution for employers: Always be clear on why you are taking action and ensure that you follow a proper procedure so that if challenged you can properly evidence any decision you have made.

Always bear in mind that the law changes and mistakes in relation to discrimination can be costly. If in doubt get advice it will save you money in the long run!


Peter D
 

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