Discrimination by association

May 1, 2008

I am updating my institution’s equality and diversity policy, and I have seen references in the news to the term “discrimination by association”. What does this mean and does it apply to us?

“Discrimination by association” refers to a situation where an individual is discriminated against through their association with another person. For example, an individual may be subjected to harassment by their colleagues because they are married to someone who is Catholic. The harassment is on the basis of their partner’s religion and not the individual’s own beliefs.

The Race Relations Act 1976, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003 protect individuals who are discriminated against on the basis of the race, religion or belief, or sexual orientation of an associated person. However, there is no similar protection in the other fields of discrimination.

The opinion of the Advocate General in Coleman v Attridge Law has cast doubt on whether UK law can limit protection in the field of disability discrimination. The case is due to be heard by a full European Court of Justice (ECJ) panel later this year. If the ECJ agrees with the Advocate General, this will have significant implications for institutions.

Discrimination by association for carers

Mrs Coleman was the carer of her disabled son. She brought a claim against her employer under the Disability Discrimination Act 1995 (DDA) and the Equal Treatment Directive 2007/78/EC (the Framework Directive) on the basis that she had been denied flexibility and support comparable to her colleagues who had non-disabled children. Mrs Coleman would have failed if her claim had been brought solely under the DDA, but she claimed that the DDA did not fully implement the Framework Directive. The employment tribunal referred the case to the ECJ for guidance as to the meaning of the Framework Directive.

The Advocate General’s opinion is that “discrimination by association” is covered by the directive. We will have to wait until later this year to see if the Advocate General’s opinion is confirmed by the ECJ. However, if the ECJ does follow the Advocate General’s opinion, this could lead to a major shake-up of discrimination legislation. The Advocate General did not restrict his opinion just to disability legislation, he also mentioned the fields of sex, age and disability. In addition, national protection for “discrimination by association” does not extend to marital and civil partnership status and gender reassignment. Certainly, the UK Government would need to amend the DDA, if not all of its discrimination legislation, if the ECJ agrees with the Advocate General.

Discrimination by association with transsexuals

Some changes to national law in this area are already being considered by the Government. In the Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, it was proposed that discrimination legislation should be extended to protect individuals who socialise or work with transsexuals. However, further extension of the right was not proposed.

Implications

Greater protection for “discrimination by association” will have an impact upon institutions. If the ECJ interprets the DDA as giving protection to carers of disabled people, institutions will be under a duty to make reasonable adjustments, for example an alteration of working hours, to prevent less favourable treatment. However, the impact of such a decision may be lessened because in April 2003 the Employment Act introduced the right for parents of young and disabled children to apply to work flexibly. From April 2007 this right has been extended to cover carers of adults. An application to work flexibly can cover:

• hours of work

• times of work

• place of work (as between home and place of business only) and must be taken seriously by the employer.

This means that where flexible working has been readily granted, any change in the law would see little change in practice. However the flexible working rights give only a right to have a request considered. If the law is changed in line with the Advocate General’s opinion, employees whose requests have been turned down would have a greater right to challenge their employer’s decision.

If the ECJ does follow the Advocate General’s advice, institutions should review policies immediately and not wait for legislation to be introduced. However, institutions will also have to be mindful that the need to review may well apply beyond disability (although it is in this area that the greatest impact may be expected) and should also be prepared that the Government may decide to extend the right to other fields of discrimination, for example sex and age.

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