Disability discrimination by association

Before the Equality Act

Some years ago various courts including the European Court of Justice, as it was then called, dealt with the case of Coleman v Attridge Law . Mrs Coleman (C), a legal secretary, was the carer of her disabled son. She applied for flexible working and when this was refused she brought a claim against her employer on the grounds that her colleagues who all had non-disabled children had been treated differently.

Change in the law

C was successful in her claim and, as part of this, the UK government was forced to change the law on “direct discrimination by association”. This is now prohibited by the Equality Act 2010 which says that this form of discrimination occurs when a person is “treated less favourably because they are linked or associated to a person with a protected characteristic” , e.g. a close friend, relative, spouse, partner, parent or child.

Note. It’s important that the person they are associated with doesn’t necessarily require the protected characteristic - if they are “perceived” to have it, e.g. a particular sexuality, that can be enough to issue a claim.

Little case law

Since the Act came into force, there’s been little case law on this point. However, the recent case of Price v Action-Tec Services Ltd t/a Associated Telecom Solutions is a firm example of an employer committing discrimination by association on the grounds of disability. So what happened and where did the employer go wrong?

Facts of the case

Rachel Price (P), the claimant, has a degenerative spinal disc disease which had led to her being absent from work for some days due to ongoing back pain. At that time, P’s husband was suffering from leukaemia (and, thus, automatically considered disabled under the Act). When his condition deteriorated P was signed off work by her GP with high blood pressure. When she returned her boss said that her employment “was not working out” ; terminated her employment with immediate effect and further commented: “If I had known about your husband’s illness I wouldn’t, no might not, have taken you on ”.

Tribunal ruling

The tribunal upheld P’s claims of direct disability discrimination and harassment, noting that once her boss had found out about her husband’s illness, he made a “stereotypical assumption that she would be an unreliable and underperforming employee” . His comment about her husband’s illness, whilst not intended to do so, had caused offence and the tribunal felt it reasonable to conclude that this amounted to harassment.

Tip 1. If an employee is closely associated to a disabled person, never refer to that person’s condition in a negative way - this is a no-no. Instead, do all you can to offer ongoing support, e.g. some temporary flexible working.

Tip 2. P only succeeded in her claims because her boss acted without thinking. Had he invoked a capability procedure that focused solely on her sickness absence record and personal capabilities, the outcome might have been quite different.