Rewriting the DDA?
The Coleman case will provide a landmark advance in disability discrimination rights, if the Advocate General's opinion is followed by the European Court
Whilst the Disability Discrimination Act 1995 (DDA) is clearly a significant piece of legislation which has been of huge benefit to many disabled people, it has long been felt that its application is limited in a way that leaves those who care for disabled people unprotected and exposed to unfair treatment without recourse. But is this about to change? On 31 January, the Advocate General issued his opinion in Coleman v Attridge Law (case C-303/06), which could have significant repercussions.
Coleman: the background
Ms Coleman was a legal secretary with London law firm Attridge Law. In 2005, following her return to work after the birth of her son who is disabled, she resigned. She brought a claim in the employment tribunal for unfair constructive dismissal and direct disability discrimination, alleging that her employers refused to let her go back to her original post, said she was lazy when she asked if she could take time off to care for her child, and harassed her.
However, the DDA provides protection only against discrimination on the ground of a disabled person’s own disability, meaning that its protection does not extend to individuals, such as Ms Coleman, who may suffer discrimination as a result of their association with someone who is disabled.
But Ms Coleman argued in the employment tribunal that the DDA should be interpreted in line with the European Framework Directive 2000/78/EC – the basis for much of the recent discrimination legislation in the UK – to include cover for those treated less favourably because of their association with a disabled person. This opened the way for the Tribunal to make a reference to the European Court of Justice on whether the directive does indeed cover associative discrimination.
The Advocate General’s opinion
The Framework Directive obliges member states to provide protection from discrimination “on the grounds of religion or belief, disability, age or sexual orientation” (article 1). In the Advocate General’s opinion this wording is indeed intended to cover those discriminated against as a result of their association with a disabled person, as this “subtle and less obvious” way of discriminating can just as easily undermine someone’s dignity.
As is emphasised in the opinion, the important words are “on the grounds of”. This wording has been successfully transferred into UK legislation in the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003, which provide protection from discrimination on grounds of sexual orientation and religion or belief. But this is not the case with the DDA. As a result, if the ECJ follows the Advocate General’s opinion (which it does in the majority of cases), the employment tribunal in Coleman will have to decide whether the DDA is actually capable of being interpreted in a way that will enable Ms Coleman’s case to proceed.
To interpret the DDA, as currently drafted, in a way that is in line with the Advocate General’s opinion may require a degree of interpolation, as was the case in Litster v Forth Dry Dock Engineering Ltd  IRLR 161, where words were implied into the TUPE Regulations to bring them into line with the Acquired Rights Directive. But a purposive construction of the DDA would mean that it would be consistent with the other strands of discrimination legislation and that UK law would provide the protection for employees envisaged by the Framework Directive.
If this happens, employers will have to bear in mind the implications of the DDA when dealing with an employee who for example has caring responsibilities for someone who is disabled, to ensure that they are not treated less favourably or harassed because of that relationship. That said, if the DDA is interpreted in line with the directive it will not automatically also impact on the need to make reasonable adjustments, although the relevant provisions of the DDA could also be amended to keep them in line were the government of a mind to do so. The Coleman case may also, in turn, have a bearing on the interpretation of the Employment Equality Age Regulations, which suffer from the same problem of interpretation as the DDA.
Certainly, those in a similar situation to Ms Coleman should be advised to bring proceedings under the existing provisions of the DDA and ask for their claims to be sisted pending the eagerly awaited developments in this potentially significant case.
Jill Bell, Anderson Strathern LLP