Employment: Care warn

New legislation gives carers the right to request flexible working. Jane Moorman and Howard Lewis-Nunn on a case that could push the UK’s laws even further

The rights of working care-givers have been climbing their way into the legislative spotlight over recent years. The Department of Trade and Industry estimates that around 2.6 million employees juggle the role of unpaid carer with their job, and the Government has introduced the right to time off for domestic emergencies and the right to request flexible working for parents.

From April 2007 employees caring for a spouse, partner, civil partner, relative or other individual living at the same address as the carer have the right to request to work flexibly.

Although the new legislation has not been targeted specifically at those caring for disabled dependants, they have benefited from it.

Coleman v Attridge Law
The test case of Coleman v Attridge Law (2005) threatens to push the protection given to unpaid carers even further. Sharon Coleman issued a claim for constructive unfair dismissal and direct and indirect discrimination against her former employer Attridge Law.

Coleman is not disabled, but is claiming disability discrimination against Attridge Law on the grounds that she is the carer of her son, who is disabled. This is known as associative discrimination.

The claim revolves around the interpretation of the disability discrimination provision in the EU’s Equal Treatment Framework Directive and its impact on the UK’s Disability Discrimination Act 1995 (DDA).

The matter has been referred to the European Court of Justice (ECJ) to determine whether the directive includes associative discrimination. If it does, the next question is whether the DDA implements properly the directive in the UK.

Differing definitions
Under the EU directive, indirect discrimination occurs where there is an apparently neutral provision, criterion or practice that would put a person “having a particular disability” at a particular disadvantage compared with other persons not having those characteristics. In contrast, the directive defines direct discrimination as less favourable treatment of an individual on the “grounds of disability”. Similarly, harassment is unwanted conduct related to or on the ‘grounds of disability’ with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

It is argued that, unlike with indirect discrimination, the directive does not require direct discrimination or harassment to be linked to the claimant’s own disability. The fact that those words have been excluded suggests that it is wide enough to provide protection from associative direct discrimination or harassment, as with the allegation made by Coleman.

The DDA’s language appears to limit the scope of direct discrimination to less favourable treatment of “a disabled person” on the grounds of “their disability” (compared with a person not having that particular disability but whose relevant circumstances, including their abilities, are the same as, or not materially different from, those of the disabled person). Similarly, to claim harassment a claimant must show that they are disabled and the unwanted conduct is through a reason that relates to “their disability”.

Even if the ECJ finds that the directive covers associative direct discrimination or harassment, Coleman may fail to convince the employment tribunal that the DDA can be interpreted to include associative discrimination. Her claim against Attridge Law would thus fail, but she may then have a claim against the UK Government for failing to implement the directive properly.

Similar cases
It has long been established that race discrimination is not confined to discrimination on the grounds of the victim’s particular colour or race, but on grounds of the race of an associated person.

In Showboat Entertainment Centre v Owens (1984) and Weathersfield Ltd (t/a Van & Truck Rentals) v Sargent (1999), white employees were discriminated against on racial grounds when they refused to comply with instructions by their respective employers to discriminate (on racial grounds) against black and Asian people. But there are limits to this concept.

In Redfearn v Serco (2006), Serco dismissed Arthur Redfearn, a bus driver, for reasons relating to his membership of the British National Party. He claimed he was dismissed because of the ethnic origin of the passengers on his route.

It was held that the expression ‘on racial grounds’ did not apply merely because the alleged discriminator had taken into account a racial consideration in arriving at a decision about how to treat a person. Otherwise to do so would mean, for example, that it would be discriminatory to dismiss an employee who was guilty of direct race discrimination in breach of an employer’s equal opportunities policy. This would turn the policy of the race relations legislation upside down. While keeping this in mind, it does not cause any great problem for Coleman’s claim, as it would be analogous only to a situation where a claim was issued by a non-disabled person alleging less favourable treatment due to the disability of a colleague or a client.

Implications for the workplace
If Coleman’s claim for associative discrimination succeeds, there would undoubtedly be a substantial impact on the rights of carers. The DDA imposes a duty on employers to make reasonable adjustments for disabled employees. If they do not, this is direct discrimination.

Associative direct discrimination would mean that an employer would have to make reasonable adjustments to accommodate an employee in caring for a disabled person. Deciding what is reasonable as an adjustment for a disabled employee is already complicated; deciding what is a reasonable adjustment for a carer is even more so. However, adjustments are mostly likely to be for changes in hours or working from home.

Flexible working requests may highlight an employee’s care responsibilities, but the duty on employers to make adjustments under the DDA is ongoing and constant. Employers would be unwise to wait for a formal request, especially if they already have information about the dependant’s disability.

It is equally possible that the right to make a claim for associative disability discrimination could extend to individuals who allege they have been treated less favourably due to any involvement they might have with a disabled person. This could include their taking part in community or charity work, or even simply being married to a person with a disability.

Associative discrimination would be added to the discrimination definition along with discrimination on the grounds of age, religion or belief, and sexual orientation. This would also be extended to direct discrimination and harassment. While the duty to make reasonable adjustments is limited to disability, there still may be scope to extend this. For example, an employee may claim discrimination on the grounds of their partner’s religion.

If the ECJ holds that the Equal Treatment Framework Directive has been implemented incorrectly in the UK, we can expect a raft of legislative changes to rectify that position. For the time being at least, it seems unlikely that our domestic anti-discrimination framework will be getting any easier to navigate.

Jane Moorman is head of employment and Howard Lewis-Nunn is a barrister (non-practising) at Howard Kennedy