Opinion: Anti-discrimination laws need to be made consistent
28 July 2008
21 May 2007
12 June 2006
3 February 2003
17 January 2008
18 August 2008
The European Court of Justice (ECJ) recently gave judgment in Coleman v Attridge Law (2008). In so doing, it clarified the remit of the Framework Directive (2000/78/EC), which was adopted in November 2000 to combat discrimination in the workplace on grounds of religion or belief, disability, age or sexual orientation.
Sharon Coleman was a secretary at a law firm. She was the principal carer for her disabled son. She alleged that, because of his disability, she was the subject of abuse from the senior partner. Also, that she was denied flexible working when requests from other employees with child care commitments (but no disabled children) were granted.
The case has attracted its fair share of publicity.
Essentially the decision establishes for the first time that a person who is directly discriminated against or harassed at work on the grounds of their association with someone who is disabled (or who is of a particular religion, belief, age or sexual orientation) can claim the directive’s protection. This gives new rights to the 2.6 million or so employed carers of the disabled.
What prompted the ECJ’s decision? One clue can be found in the judgment of the Advocate General Poiares Maduro, who gave his opinion in January 2008. Maduro centred his opinion on “human dignity and personal autonomy” as values at the core of the non-discrimination rule. He considered that a disabled person (or a person of a particular religion, belief, age or sexual orientation) “is affected as much by being directly discriminated against as … by seeing someone else suffer discrimination merely by virtue of being associated with him”. Thus, he opined, “a robust conception of equality” should mean such subtler forms of discrimination are also caught by anti-discrimination legislation.
The national courts have long adopted Maduro’s robust conception of equality in the context of race discrimination. For example, in Zarczynska v Levy (1979), the complainant (who was white) was sacked for serving a black customer, contrary to her employer’s instructions.
The Employment Appeal Tribunal held that she could claim discrimination “on racial grounds” under the Race Relations Act 1976. In the context of other strands of the directive – sexual orientation, religion and belief – associative discrimination has now been prohibited by the Sexual Orientation Regulations and the Religion and Belief Regulations 2003 (both enacted to implement the directive). Logically, then, associative discrimination ought also to be outlawed in domestic law in the context of the remaining ‘strands’ of the directive – disability and age.
The Disability Discrimination Act
1995 was amended in 2004 to implement the directive. But it only offers “the disabled person” protection from direct discrimination or harassment. It manifestly does not provide protection from associative discrimination. One way or another, this will have to change.
The Government has promised an equality bill in the next Queen’s Speech, but its response last week to the consultation on the equality bill already sets out the need for “careful consideration” of the ECJ’s judgment.
Interestingly, the Government also indicates that, once it has addressed the implications of the Coleman judgment in the context of how to define harassment in the equality bill, it will also consider whether there is a case for extending freestanding statutory protection against harassment on grounds of disability outside the workplace.
Finally, the judgment in Coleman also means that the 2006 age regulations do not comply with the directive, because they do not properly outlaw associative discrimination. This will be of particular significance to those involved in caring for the elderly. It will also serve further to advance the developing national agenda of finding a balance between home and work obligations.
Paul Michell appeared for Sharon Coleman