Disability rights extended to carers

Published: 17th July 2008

The European Court of Justice have decided that even when someone is not disabled themselves they can claim disability discrimination. A claimant need only to prove less favourable treatment or harassment based upon the disability of their child (or other person) and they will succeed in their claim. In the case being considered, a mother resigned after she alleged her employer called her lazy for taking time off to care for her disabled child and alleged that she used her child to manipulate her working conditions. She will now be able to pursue her claim for disability discrimination. The full court has agreed with the Advocate General's opinion which we highlighted earlier this year (the case is Coleman v Attridge), but this is now the final binding decision which will be followed by UK Tribunals.

If an employee is ridiculed because of their disabled child, parent with cancer, or partner with HIV, that will be disability discrimination. If a new employee is dismissed because their employer finds out their child has leukaemia and is concerned about the time they might need off in the future, that's discrimination. These implications of this decision are not overly contentious.

The real problem is likely to arise where an employee takes lots of time off (particularly at short notice) to care for their sick child or elderly relative and an employer does not know what is actually wrong with them. If the employee claims the person for whom they care has a disability, what can the employer do? The employer must not treat the employee less favourably because of the reason for their absence. However, if all employees with the same absence record are dismissed, arguably that is not less favourable treatment and therefore not disability discrimination.

What is notable about the European Court's decision is that they say that the duty to make "reasonable accommodation" for people with disabilities (the wording used in the European Directive) is specific to those with disabilities only and does not extend to someone such as Mrs Coleman who is herself not disabled. If that reasoning is followed by Employment Tribunals when applying UK law, it is likely to mean that the duty to make reasonable adjustments (such as allowing extra absence, changed working times, different on call arrangements) does not extend to those caring for people with disabilities. If so, that greatly limits the impact that this decision may have on employers in the UK. The key issue for employers will be ensuring consistency of practice in allowing absence, lateness and different working hours when employees ask (whatever the reason), not the tougher test of being required to reasonably adjust these things for carers of those with disabilities.

The position now is that this European decision will now need to be interpreted by Employment Tribunals in the UK. It will significantly extend the number of employees covered by the Disability Discrimination Act and employers must guard against less favourable treatment or harassment of carers. However, hopefully, the detail of this decision means that the extended rights may not be as problematic in practice as may have been feared.

If you would like to discuss the potential impact of this decision on your organisation, please speak to your usual contact in the Mace & Jones employment and HR team