Equal Rights For Carers

The Disability Discrimination Act 1995 made it illegal to discriminate against disabled employees, but what about those who care for disabled people?

In an Opinion published before the European Court of Justice (“ECJ”) the Advocate General, said that carers should be protected. Generally the ECJ echoes the Advocate General’s view.

This decision could therefore affect every business that employs staff who care for a disabled person.

The Advocate General was considering a case brought by Mrs Coleman. Mrs Coleman worked as a legal secretary for a firm of solicitors. She gave birth to a son, Oliver, who is disabled and suffers from severe breathing problems. His disability meant she needed take time off to care for him and so she asked for flexible working. Her employer told her that she was using Oliver’s condition as an excuse to take time off work and said that she was lazy. Her request to work flexibly was refused, she was subjected to disciplinary action, and then made redundant.

Unsurprisingly, she brought a claim for constructive dismissal and disability discrimination arguing that her employer treated her less favourably than employees with non-disabled children and had created a hostile environment for her. She argued that the Disability Discrimination Act should protect individuals who suffer from discrimination because of their association with a disabled person. Her employer disagreed stating that as she was not disabled, the Disability Discrimination Act did not apply.

The Advocate General agreed with Mrs Coleman declaring that the alleged mistreatment was due to disability discrimination, even though she herself was not disabled. If the ruling of the advocate general is upheld by a full court of the ECJ, which is likely, although not guaranteed, the verdict will require employers to give new rights to millions of carers.

So, what does this mean for employers in the South West? Well, for a start, there will be more claims for discrimination by association, and not only on the ground of disability discrimination. The Advocate General stated that these principles should apply to direct discrimination or harassment by association on grounds of religion or belief, age or sexual orientation (they already apply in the case of race discrimination).

So how can employers minimise the risk of such claims?

The key message is to ensure that no one is treated less favourably because they have, for example, a disabled child, a Scientologist husband, a gay partner, or an elderly relative.

With the higher proportion of elderly people in the South West, issues surrounding carers are more likely to affect local businesses. Employers must consider requests for flexible working or redundancy situations carefully to avoid any suggestion of less favourable treatment for those caring for others.

Employers should also be aware of their office culture. Hostile attitudes from colleagues frowning on carers who need to come in later or go home early could put an employer at real risk of a claim. Employers should take time to explain to employees the rights of carers to avoid being accused of favouritism when carers take time off.

Employers should review their flexible working policy, and include in their equality and diversity policy that harassment and discrimination by association will not be tolerated. Training managers can also help to avoid employment tribunal cases.

If the worst happens, then an employer who can show a tribunal that all the right procedures, training and policies to avoid discriminatory behaviour were in place stands a much better chance of defending its position.

For more information or advice, please contact Esther Maxwell

Published 05/02/2008. The author of this article is Esther Maxwell