Disability law ruling gives staff protection

Aug 15 2008 By Scott Mcculloch

Court grants greater rights to working carers after test case

Employees caring for a disabled dependant could now benefit from greater rights and protection following a recent ruling by the European Court of Justice.

The ruling found that the Disability Discrimination Act (DDA) did not comply with European equality law, and therefore employment protection available under DDA should extend to those who care for disabled people.

Before the ruling, it was thought the protection was far narrower and was only available to disabled people themselves.

The case involved Sharon Coleman, a legal secretary at Attridge Law and the primary carer for her severely disabled son.

His condition, which included apnoeic attacks (involuntary halts to breathing), put considerable demands on her time because it required such specific and constant attention.

Ann Frances-Cooney, an employment, pensions and benefits solicitor with DLA Piper Scotland, says the ruling will have "wide-reaching implications" for employers, as job applicants and ex-employees will also be afforded the same rights as current employees.

She said: "Sharon Coleman brought an employment tribunal claim against Attridge law for disability discrimination and also for constructive dismissal.

"She claimed her employer had subjected her to harassment and to less favourable treatment than employees with non-disabled children.

"Some of her allegations included the fact that she had not been permitted to return from maternity leave to her existing job, had been called "lazy" when asking for time off to care for her son and had been subjected to disciplinary action.

"She also claimed her employer had failed to give her the same flexibility regarding working arrangements as was given to parents of non-disabled children.

"A literal reading of the DDA would only prohibit discrimination against people who have a disability themselves, meaning that Sharon Coleman would have been unable to raise a claim.

"However, she argued this interpretation went against European equality laws which prohibit discrimination on grounds of religion or belief, sexuality, as well as disability, not only for those people but also those associated with them."

The case was referred to the European Court of Justice, which ruled in favour of Coleman, agreeing that she had been discriminated against on account of her association with her disabled son.

Employment tribunals will now need to comply with this ruling. Frances-Cooney added: "Given that protection from discrimination is available not just to employees but also to job applicants and ex-employees, the implications have the potential to be wide-reaching.

"Clearly, the ruling stands to benefit individuals who are carers of disabled friends or family members to either gain or keep their position in the workplace. For employers however, one of the major headaches will be identifying which members of staff or which job applicants will qualify for this protection.

"Asking an employee to demonstrate that the person they care for is disabled for example, raises difficulties and employers would be well advised to tread carefully in making tactful enquiries.

"In practical terms, employers should be flexible when a carer needs time off work to fulfil their caring responsibilities and they should be cautious about disciplining a carer whose performance or attendance at work is affected by their responsibilities.

"Care should also be taken to avoid basing decisions not to recruit or promote a person for reasons that may be construed as relating to their caring responsibilities.

"Importantly, it may be advisable to avoid taking a too rigid approach to flexible working requests which should always be considered on their individual merits, even if they do not appear to fall within the statutory flexible working regime."