Disability discrimination - latest developments

12th December 2008 There have been a number of recent developments in the law on disability discrimination. These are developments on issues raised in our news articles in July 2008, entitled " Discrimination by Association" and "Changes in disability discrimination- Who do you compare the disabled person to?"

Discrimination by Association
 
The first of these developments is the decision reached by the Employment Tribunal in the case of Coleman v. Attridge Law, following the earlier decision from the European Court of Justice on the question of whether the Disability Discrimination Act (DDA) protects people associated with a disabled person from discrimination or harassment. This case concerned the mother of a disabled child. When she sought to take time off work to care for her son, her employer called her "lazy", and accused her of manipulating her working conditions. The case was referred to the European Court of Justice on the question of whether or not the DDA should be read so as to protect as a personwho, although not disabled him or herself, neverthless suffers some form of discrimination or harassment as a result of their association with a disabled person.  

The European Court of Justice ruled that the DDA should be read so as to protect people from the form of discrimination by association as highlighted by this case.

The case has returned to the Employment Tribunal in the UK to determine this issue, in light of the European Court judgment. The Tribunal has given a ruling on this point, and ruled that the references to a disabled person in the DDA for these purposes should be read to include the words, " or a person associated with a disabled person."

This decision will no doubt be very welcomed by the parents and carers of disabled people. From a practical point of view this case illustrates the need of employers to look carefully at the individual circumstances and needs of their staff when applying their internal policies and practices. It also demonstrates that employers need to give extra care and attention when considering the scope and application of any Equal Opportunities policy and practices they operate. In particular, employers will need to give careful thought to any requests for time-off, and flexible working arrangements in light of this case.

Changes in Disability Discrimination-Who do you compare the disabled person to?- Update  

We reported the decision of the House of Lords in the case of London Borough of Lewisham v Malcolm in July this year, under the heading of referred to above. The case was one about housing law, but has had a major impact on the interpretation of the Disability Discrimination Act in relation to employment.

The House of Lords concluded that the "comparator" test applied for several years in employment related cases, as set out by the Court of Appeal on a case in 1999, was incorrect. See our Free Factsheet on "Disability Discrimination" on the details.  The practical effect of that decision is that it will be much harder for employees to show that they have been the victim of discrimination on grounds related to their disability than had previously applied.        
  
The Government, in response, is considering making amendments to the existing legislation through the new Equality Act. It has been proposed that a new approach should be adopted, by introducing the concept of "indirect discrimination " into the DDA. By doing this the Government believes that an appropriate level of protection will be given to the disabled- which has been eroded by the recent decision of the House of Lords in the Malcolm case.

Indirect discrimination is a concept found in much of the UK's anti-discrimination legislation. Indirect disability discrimination would occur where a provision, criterion, or practice, which is applied to all staff, puts (or would put) disabled workers at a particular disadvantage compared to others, unless  the employer can show that the provision, criterion, or practice inquestion can be objectively justified. This response would appear to have merit, as it will help streamline the various types of anti-discrimination, and provide protection for the disabled while still enabling employers to be able to "justify" their actions (the provision, criterion, or policy) where they are fair, and proportionate.

This proposal is the subject of a consultation exercise, which  is open until the 9th January 2009.

If you have any questions, or need any further advice on any of the matters raised in this article, do not hesitate to contact us.