Associative Disability Discrimination

Associative disability discrimination - what's that all about then? Well, in broad terms, it means discrimination by association with a disabled person. What is not so easy to answer is whether associative disability discrimination is a legally recognised concept. That question is presently being wrestled with in the case of Attridge Law v Coleman, EAT, 9 November 2006.

Miss Coleman was formerly employed by a firm of solicitors, Attridge Law. She resigned from her employment and presented an application to the Employment Tribunal complaining of constructive dismissal and disability discrimination. The latter complaint is founded not on the fact that Miss Coleman is disabled but rather on the grounds that she is the carer of a disabled person, namely her son.

The legislative basis for disability discrimination is, of course, the Disability Discrimination Act 1995. On the face of it, that Act does not prohibit associative disability discrimination. However, that does not, by itself, mean that Miss Coleman's claim will necessarily fail. The 1995 Act is part of the UK's attempt to implement European legislation. It is therefore permissible to go back to the European legislation to see if a proper construction of that prohibits associative discrimination. If it does, and the 1995 Act can be read consistently with that construction then Miss Coleman would have a valid complaint of associative disability discrimination.

In Miss Coleman's case, the Employment Tribunal decided to refer the question of whether the European legislation prohibits associative discrimination to the European Court of Justice. Attridge Law appealed that decision but the EAT refused the appeal. Once the European Court of Justice has considered the matter, the case will then go back to the Employment Tribunal with the possibility of the Tribunal then requiring to decide whether the Disability Discrimination Act can be interpreted in such a way as to include protection for associative discrimination.

A couple of interesting matters to note about Miss Coleman's case is that it is being backed by The Disability Rights Commission (the DRC) and that the lead Counsel acting for Miss Coleman is Mr Robin Allen QC. Mr Allen was also the lead Counsel in Archibald v Fife Council 2004 IRLR 651. Mrs Archibald also had the backing of the DRC. At the risk of reading too much into this, it would appear that the DRC regard this as a test case that is worth pursuing. Whether they will succeed again remains to be seen but, if they do, there is no doubt that the scope of disability discrimination will be stretched considerably if non-disabled employees will have the protection of the 1995 Act on the basis of their association with disabled persons.

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