The recent European Court of Justice case of Coleman v Attridge Law demonstrates the potentially radical changes the Tribunal System can affect in day-to-day life. Sharon Coleman worked as a legal secretary for a firm of solicitors called Attridge Law. Her son was disabled within the meaning of the Disability Discrimination Act 1995. She was not. His disability required that she take more time off and consequently more paid leave to care for her son. Attridge Law refused to grant her the same flexibility in her working arrangements as those of colleagues with non-disabled children. She was then subjected to disciplinary action and Attridge Law failed to deal properly with a formal grievance she lodged against her ill-treatment. Sponsored by the Commission for Equality and Human Rights she brought a claim for constructive dismissal and disability discrimination against the firm.

At the prehearing review the tribunal chair decided that the question of whether discrimination by way of association with a disabled person is prohibited by the Equal Treatment Framework Directive should be referred for a preliminary ruling. On 17th July 2008 the ECJ decided that the Directive and, in particular, Articles 1 , 2(1) and (2)(a) had to be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions was not limited only to people who were themselves disabled. Moreover, Articles 1 and 2(1) of the Directive had to be interpreted as meaning that the prohibition of harassment laid down by those provisions was not limited to applicants who were themselves actually disabled. Sharon Coleman, as an associate, was found to have an action against Attridge Law for disability discrimination and harassment.

On 2nd April 2009, nearly a year on, Harriet Harman’s Equality Bill if enacted will extend the law on direct discrimination to include discrimination by association and perception to disability, sex, gender reassignment and age in both the employment field.

This article considers where a Coleman claim might emerge and the difficulties posed by existing arrangements which associates will still need to overcome in order to bring their cases to tribunal.

2. WHO BENEFITS?

ASSOCIATED CARERS

The first group of beneficiaries are associates. But where is the greatest incidence of association? There are currently 6 million people providing unpaid care in Britain, most of which are women. Moreover 2.6 million employees juggle the role of unpaid carer with their job . Carers UK have raised the profile of carers who find themselves in the same position as Sharon Coleman. In the context of an ageing population, greater medical recognition of psychological and anxiety related conditions, cultural diversification and changes in government policy pertaining to schooling for the mentally disabled and the shift from care in the community to care in the home are all factors contributing to the need to re-assess the rights of carers and associates of disabled individuals.

Progress in the understanding of disability

The status quo before Coleman arguably saw disability discrimination law in the UK fail to keep pace with our understanding of disability as society has evolved. The great majority of disability discrimination claims turn on whether someone actually succeeds in being classified as being disabled. Now if someone is sacked from work owing to absences related to depression, then their claims no longer exist purely in unfair dismissal alone, now they also arise under disability discrimination.

Discrimination based on perception

This is an area that still needs clarity. If there is a perceived disability, how do you prove this? This issue is especially relevant to cases which concern perceived illness. Instances of discrimination against an individual on the basis of perceived disability is also complicated because barristers are dealing with the infliction of an act which in itself tends to cause an illness in the form of stress. These situations might also involve religion and belief for instance there may be cases where in a civil marriage one party is a Muslim, the other is not and adopts and Islamic surname. However issues of association and perception occur far more frequently in cases of disability’ .

Sale of goods and service cases

A major source of such claims in associative discrimination will be sale of goods and services cases. These are situations such as where someone tries to enter a cafe attended by a disabled person and is turned away because of their disabled partner. Similarly one can imagine the scenario of a disabled person trying to get into a nightclub and his or her associates being turned away because of their disabled partner.

INTERSECTIONAL DISCRIMINATION

Claims of an intersectional nature have the potential to multiply the likelihood of discrimination by association. In Bahl v The Law Society , an Asian woman claimed that she had been subjected to discriminatory treatment both on the grounds that she was Asian and also on the grounds that she was a woman. The Court of Appeal preferred to try discrimination in this case under separate heads. The powerful minority judgment of Madame Justice L’Heureux Dubé in the case of Canada (A.G.) v Mossop stated: ‘...categories of discrimination may overlap, and individuals may suffer historical exclusion on the basis of both race and gender, age and physical handicap, or some other combination’.

Sexually transmitted diseases

Discrimination law practitioners might anticipate claims of an intersectional nature involving those

who cared for people with HIV and groups with whom HIV is associated in the public mind such as gay men, black Africans, injecting drug users, family members of those injected with HIV, carers and health professionals working in the field.

Cultural differences

Associative Discrimination claims may arise in different measures across different cultural groups. It is an established fact that because of social changes, an increasing proportion of single mothers in the UK are of Afro Caribbean origin. Furthermore, another cultural factor at work here is the number of Asian families and households where there are more than one generation live under the same household’ .

Women

There is also talk of the ‘Sandwich’ phenomena. This concerns women in their 30s and 40s who have young kids and elderly parents.

Poverty

Viewing discrimination law in its proper social context, the state of being a carer is in a large part a correlative of being poor. Instances of associative discrimination are going to hit the most vulnerable people first. There is a practical question to be asked here: What length does a parent go to support their disabled child? Do they go as far as to lose their job?

YES WE CAN?

The press made much was made of the general phenomenon of floods of claims resulting not from changes in the statute but changes in the case law. This generated the impression that Coleman had granted the right to reasonable adjustments to carers of disabled children. In reality Sarah Coleman was found to have rights in direct discrimination and harassment. Coleman is therefore limited to old fashioned prejudice cases, direct and indirect discrimination cases and harassment. Moreover the irony might be that in all probability Coleman actions will make up only a small number of disability discrimination cases.
Practical difficulties

Referral agencies

Community Advice Bureaus and Law Centres will have little involvement here precisely because there is no legal aid funding for discrimination law claims. Moreover the financial incentive for referral agents to take up volume cases creates difficulties for claimants in associative disability discrimination cases. Associative discrimination cases will make up a much smaller proportion of cases overall. These cases may prove to be too complex and require the attention of committed practitioners.

Employment law Bar

How prepared is the employment law bar? There is no legal aid for discrimination law work. People suffering this form of discrimination are going to be poor people, vulnerable people. It is very rare then that these cases are going to be picked up by solicitors and barristers. If Sarah Coleman had a sufficiently high paid job she would have paid for a nanny and there would have been no problem in the first place. The most important practitioners in this field will turn out to be those who will feel that associative discrimination needs to be pushed as part of the wider social landscape.

Tribunals

Associative discrimination is like any legal development. The effectiveness of a legal right depends on how receptive a judge is to it. Judges will need to act fairly and speedily. If a claimant in Sharon Coleman’s position was faced with a hectoring cross examination, this would have to be stopped by a tribunal chair acting within the Overriding Objective.

General awareness

Frequently somebody who is mentally disabled will not be aware that they are subject to acts that are intended to cause injury and hurt to feelings. People in the caring professions are potentially very vulnerable. In many situations, claims will be a last resort. Sarah Coleman had the benefit of good advice at an early stage.

Employers

At the end of the day it is employers who will drive changes in this area. This is a question of accommodation. Employers will want to stay ahead of the game because they want a compliant workforce. Employers will address associative discrimination and orientate their policies appropriately irrespective of what the law says.

HOPE SPRINGS ETERNAL

The emergence of rights against discrimination for associates highlights the extent to which discrimination law can be conceptualised as a social weapon. It will be interesting to see how intersectional and associative discrimination develop in terms of the language used before tribunals. How long will it be before we start thinking of employment law in terms of human rights? It could be argued that human rights could well encapsulate intersectional and associative discrimination.

Equality meaningfully understood consists of human dignity and personal autonomy. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation. In the words of Sharon Coleman, “we are one step nearer to stopping people with caring responsibilities like me from being badly treated and harassed at work. It has taken a lot of courage to fight this case, but no-one should have to choose between caring for disabled relatives or their job” .