Coleman v Attridge Law: Advocate-General Opinion

The Advocate General has, this morning, handed down his opinion in the important case of Coleman v Attridge Law & Steve Law.

In 2006, South London Employment Tribunal referred to the ECJ the question as to whether the EC Equal Treatment Framework Directive protects not only disabled employees from direct discrimination and/or harassment, but also those employees who are associated with the disabled, such as carers.

The Advocate General (whose opinion is usually followed by the ECJ) has stated that direct discrimination and/or harassment by association is prohibited by the Directive. He said that the Directive makes it impermissible for an employer to rely on religion/age/disability etc to treat employees less well than others, as to do so would amount to subjecting these individuals to unjust treatment and failing to respect their dignity and autonomy. This fact does not change when the employee who is the object of discrimination is not disabled herself. The Directive protects against discrimination "on the grounds of" disability, and the "ground" which serves as the basis of the discrimination the employee suffers continues to be disability.

Although the reference to the ECJ was limited to persons who are disabled, the Advocate General indicated that the same principle will apply to any of the prohibited grounds listed in Article 1 of the Directive (namely religion or belief, disability, age or sexual orientation). This means that the Directive would, for example, protect a person from discrimination because he or she is married to a person belonging to a particular religious group.

On the face of it, the Disability Discrimination Act 1995 does not prohibit discrimination by association - so, if the ECJ agrees with the Advocate General, the next hurdle for Miss Coleman will be to see if the UK courts are prepared to interpret UK law by, for example, implying additional wording into the DDA to achieve the purpose of the Directive. The same will apply to equivalent claims under the Age Regulations, for example. In the end, the Government may need to change the relevant legislation if necessary to bring it in line with the Directive.

[Thanks to Ruth Bonino of Reed Smith Richards Butler LLP for producing the above summary. Thanks also to Michael Herman of Times Online for telling me the opinion was being handed down today]