The ECJ confirms that the Disability Discrimination Act needs to change

July 24, 2008

Much of current UK discrimination law, including the Disability Discrimination Act 1995 (DDA), is founded on the European Equal Treatment Framework Directive. The Framework Directive prohibits discrimination on the grounds of, among other things, disability. Under UK law, the protection afforded by this legislation was thought to extend only to those individuals who could show that they had been treated less favourably on the grounds of their disability. It was not thought to extend to discrimination arising from the disability of another person, with whom that individual was associated (discrimination “by association”).

However, in an important ruling (Coleman v Attridge Law), the European Court of Justice (ECJ) has now confirmed that the Framework Directive does prohibit disability by association. In so doing, it found that the UK’s implementation of European disability discrimination protection is inadequate. As a result, significant change to the way in which the courts have interpreted the DDA is needed or, more likely, a change to the wording of that legislation. Either way, such change is likely to have a significant impact on working practices in the UK.

Discrimination by association

The wording of the DDA (as amended) provides protection from discrimination “for a reason which relates to the disabled person's disability”. In other words, discrimination in the context of disability is linked to the individual’s characteristics. This is in contrast to other domestic discrimination legislation, which refers simply to discrimination “on the grounds of” the protected category. Under this legislation, it is well established in UK case law that protection extends beyond the characteristics of the individual and includes, for example, discrimination by association.

Ms Coleman is a carer of her disabled son. She alleged that her former employer treated her less favourably than colleagues with non-disabled children. However, because she was not the “disabled person”, Ms Coleman was unable to claim that her employer’s actions were discriminatory under the DDA.

Ms Coleman argued that the failure of the DDA to recognise discrimination or harassment of a non-disabled person on the grounds of their association with someone with a disability provides much narrower protection in this area than is provided in relation to other areas of discrimination legislation. It also, she contended, does not accord with the much wider wording and interpretation of the Framework Directive.

The tribunal considered that the wording of the Framework Directive was not sufficiently clear so as to expressly protect against claims of discrimination by association and referred the matter to the ECJ for a ruling.

What happens next?

Now that the ECJ has confirmed that the Framework Directive does prohibit discrimination by association, the employment tribunal dealing with the Coleman case will need to consider whether the wording of the DDA can reasonably be interpreted in that way for her claim to proceed.

What also seems inevitable, in light of the ECJ’s ruling, is that further revision of the DDA is needed. A suggestion from the tribunal was that the words “or a person associated with a disabled person” might be added to give proper effect to the Framework Directive. The Government may choose to adopt similar wording in due course. In the meantime, public sector employers, to whom the Framework Directive applies directly, will need to review their actions carefully.

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