MINELRES: ERT: COURTWATCH: ECJ rejects narrow interpretation of discrimination

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Original sender: Equal Rights Trust <equalrightstrust1@response.pure360.com>


Discrimination by association prohibited in ECJ judgment  
 
London, 21 July 2008  
 
On 17 July 2008, the European Court of Justice passed judgment in the
case of Coleman v. Attridge Law and Steve Law (Case C-303/06).  The
judgment interprets the meaning of the prohibition of direct
discrimination and harassment in employment and occupation on grounds of
disability pursuant to Article 2(2)(a) and Article 2(3) of Council
Directive 2000/78/EC of 27 November 2000. 

Ms Coleman worked at a law firm in London as a legal secretary from
January 2001.  In 2002, she gave birth to a disabled child for whom she
is the primary carer. 

On 4 March 2005, Ms Coleman accepted voluntary redundancy that ended her
employment at the law firm.  On 30 August 2005, she brought a claim to
the South London Employment Tribunal for constructive dismissal and
disability discrimination against her former employer.  It was alleged
that she had been treated less favourably than other employees because
she was the primary carer for her child.  For example, she alleged that
her former employer refused to allow her back to her existing job
following maternity leave.  Further, she was not granted similarly
flexible working arrangements as those of her colleagues with
non-disabled children. 

The case hinged on the matter of the scope of the prohibition of direct
discrimination and harassment on grounds of disability contained in the
framework directive on employment and occupation (2000/78/EC).  In
particular, is the protection granted by the prohibition contingent on
the employee having a disability herself, or does it also include the
situation where the employee is discriminated against on the basis of
the disability of her child, for whom she is the primary carer?  The
Employment Tribunal referred the matter to the Court of Justice. 

The Court stated that the purpose of the directive is to prohibit all
forms of discrimination in employment and occupation on grounds of,
inter alia, disability.  The principle of equal treatment is applicable
by reference to the grounds set out in Article 1 of the directive,
including disability, and not to a particular category of person.  As
the Court explaind, “An interpretation limiting its application only to
people who are themselves disabled is liable to deprive the directive of
an important element of its effectiveness and to reduce the protection
which it is intended to guarantee.” 

In relation to the burden of proof, once Ms Coleman establishes a prima
facie case of discrimination, the effective application of the principle
of equal treatment requires that the burden of proof shifts to her
former employer. 

The Court concluded that Directive 2000/78 “...must be interpreted as
meaning that the prohibition of direct discrimination laid down by those
provisions is not limited only to people who are themselves disabled. 
Where an employer treats an employee who is not himself disabled less
favourably than another employee is, has been or would be treated in a
comparable situation, and it is established that the less favourable
treatment of that employee is based on the disability of his child,
whose care is provided primarily by that employee, such treatment is
contrary to the prohibition of direct discrimination laid down by
Article 2(2)(a).” 

In relation to harassment, the Court used the same reasoning to conclude
that the “...meaning that the prohibition of harassment laid down by
those provisions is not limited only to people who are themselves
disabled. Where it is established that the unwanted conduct amounting to
harassment which is suffered by an employee who is not himself disabled
is related to the disability of his child, whose care is provided
primarily by that employee, such conduct is contrary to the prohibition
of harassment laid down by Article 2(3).” 

The judgment in this case is very important, as it asserts the general
principle that discrimination should be prohibited when it is on the
ground of the association of a person with other persons to whom a
prohibited ground applies. 

To view ERT case summary click here
http://www.equalrightstrust.org/ertdocumentbank/Coleman%20Case%20Summary.pdf 

To view the full text of the case click here 
http://curia.europa.eu/jurisp/cgi-bin/form.pl?
lang=EN&Submit=rechercher&numaff=C-303/06


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