Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 1166_08IT, [2010] NIIT 1166_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1166/08

CLAIMANT: Gillian Lorraine Long

RESPONDENTS: Social Security Agency and Others

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that it answers the three preliminary legal issues before it in the negative.

Constitution of Tribunal:

Chairman (sitting alone): Mr Uel Crothers

Appearances:

The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by McCartan Turkington and Breen, Solicitors.

The respondents were represented by Miss N McGrenera, QC and Mr D Lunny, Barrister-at-Law instructed by the Departmental Solicitor’s Office.

The Issues

1. The issues before the tribunal, as agreed at a Case Management Discussion dated 4 March 2010, (a record of which is attached to this decision) were as follows:-

i). Does the respondents’ duty under Section 4A of the Disability Discrimination Act 1995 to make reasonable adjustments extend to protect persons such as the claimant who are not themselves disabled but who are primary carers for a disabled person?

(ii) Does the duty to make reasonable accommodation in relation to persons with disabilities under Article 5 of the Council Directive 2000/78/EC (“The Framework Directive”) extend to protect persons such as the claimant who are not themselves disabled but who are the primary carers for a disabled person?

(iii) Does the prohibition on indirect disability discrimination contained in The Framework Directive extend to protect persons such as the claimant who are not themselves disabled but who are associated with a disabled person?

Sources of Evidence

2. The tribunal was presented with bundles of documentation by both parties relating to their skeleton arguments incorporated therein.

Findings of Facts

3. For the purposes of the Pre-Hearing Review only, the parties agreed the following facts:-

(i) The claimant was at all material times to this claim an administrative officer employed by the respondent.

(ii) The claimant worked in Castle Court Benefit Shop.

(iii) The claimant’s employment with the respondent began on 26 February 2001.

(iv) The claimant’s child is disabled as defined by the Disability Discrimination Act 1995?

(v) The claimant’s son, (Adam [d.o.b. 30 January 1998]) attends Harberton Special School.

(vi) The claimant’s son requires a high level of supervision at all times.

(vii) The claimant’s parents are unable to cope with the claimant’s son.

(viii) The claimant’s son still needs nappies and is unable to attend private day care facilities.

(ix) The claimant is a single parent with sole caring responsibility for her son.

(x) The claimant was on granted 4 weeks term-time leave in the year 2007-08.

(xi) The claimant became ill as a result of the stress of worry and anxiety of how her son would be looked after when she was not available.

(xii) The claimant’s General Practitioner considered that the claimant was unfit for work because of this stress.

(xiii) The claimant was medically certified as unfit to work for 6 months.

(xiv) The claimant’s welfare officer, Robin Ritchie, visited the claimant on
2 October 2007.

(xv) The claimant’s welfare office wrote to her line manager asking for reconsideration of term-time leave because of the claimant’s exceptional circumstances.

(xvi) The claimant applied for term-time in order to care for her son when no other help was reasonably available. The Capacity Planning Tool is a provision criterion or practice as defined by the DDA 1995 section.

(xvii) The purpose of term-time working is to enable staff with children under school leaving age to balance home and work commitments during those periods outside the normal school terms.

(xviii) The claimant completed the Term-Time Working Application Form (Annex 4.2) and signed it on 20 December 2007.

(xix) The claimant applied on 20 December 2007 for term-time leave for 12 weeks of “term-time” leave in 3 periods:

(1) 27 June 2008 to 29 August 2008.
(2) 27 October 2008 to 31 October 2008.
(3) 22 December 2008 to 2 January 2009.

(xx) If demand exceeds the amount of term-time that can be approved, priority is given to staff with children.

(xxi) If demand from staff with children exceeds the amount of term-time available, no priority is given to staff who are primary carers for disabled children.

(xxii) The Capacity Planning Tool does not allow for reasonable adjustment to be made for primary carers. The CPT applies to all staff in the NICS. The claimant’s application was granted for only 4 weeks of the 12 requested. Forty-four permanent term-time contracts have been entered into by the respondent. EOC 01/06 1.1 provides that the Capacity Planning Tool may be used as an aid for decision makers reaching a decision under the relevant policy. A proposal to operate an office with less than the minimum establishment number to facilitate additional term-time applications requires a business case to be made. In order to increase the capacity of an office to accommodate additional applications, the normal guidelines set out in Annex 5.1 of Hours of Attendance Chapter of the NICS Handbook should be applied. The respondent failed to implement 4 of the 5 recommended guidelines.

(xxiii) On the first day that the claimant was required to return to work because of the refusal of term-time leave she left her son with her parents. Her son was injured on that day and taken to Accident and Emergency at the Royal Group of Hospitals. The claimant took 2 days special leave in order to care for her son. Consideration of the claimant’s term-time application was subject to the Code of Practice in the NICS Staff Handbook, Equal Opportunities, Chapter 2 Dignity at Work Annex 3. NICS Staff Handbook Chapter 1: Leave and Attendance Hours Annex 4 (and paragraph 1.1.4) provides that Heads of Branches should aid to accommodate requests rather than look for ways of turning them down, and ensure that, while it is recognised that there may be circumstances when it is not possible to approve an application, such decisions are justifiable and are based on sound business reasons (see paragraph 1.7 of Annex 4). The list of prioritisation given in Annex 4, paragraph 1.7 includes staff with disabled children. The respondent maintained that it was not possible to accommodate the claimant’s application solely because of the CPT. The CPT applied to the claimant’s application provided that there was no capacity to grant the application and maintain minimum staffing levels.

(xxiv) The claimant was encouraged by her line manager to take unpaid annual leave for the duration of the time off which was refused under the CPT. An application for annual leave is subject to the business needs. The claimant was granted time off on unpaid annual leave for the time which was refused under her application for term-time working. There was in fact no business requirement for the claimant to work the time she was refused under her term-time application. No business case proposal was considered under the claimant’s term-time review.

(xxv) The rigid application of the CPT without using a business review was a practice as defined by the DDA. The application of the CPT without considering the obligations under Annex 4 was discriminatory.

(xxvi) The claimant complied with the statutory grievance procedure.

(xxvii) The CPT was applied by the respondent in such a manner as to remove discretion from line managers. The claimant’s line manager was fully aware of the claimant’s personal circumstances. The claimant’s line manager was constrained by the provisions of the CPT which indicated that “there was no capacity for Term-Time”. The claimant’s line manager considered that this left him no alternative but to disallow her application “based on business grounds”. In fact, there was sufficient cover for the claimant to have been granted term-time.

(xxviii) The CPT does not afford the opportunity for line managers to take individual needs into consideration.

The Law

4. The relevant legislative provisions and authorities are adequately set out in the written submissions attached to this decision.

Submissions

5. The tribunal was assisted by the helpful written and oral submissions submitted on behalf of both parties by Mr McKee, Barrister-at-Law, and Miss McGrenera, QC respectively. The tribunal carefully considered the submissions both written (in the form of skeleton arguments) and oral.

Conclusion

6. The tribunal, having considered the agreed facts together with the relevant law as articulated in the skeleton arguments, finds itself persuaded by the respondents’ Counsel analysis of the law and relevant authorities and accordingly answers the questions posed in the issues before it, in the negative.

Chairman:

Date and place of hearing: 5 November 2010, Belfast.

Date decision recorded in register and issued to parties:

THE INDUSTRIALTRIBUNALS
CASE MANAGEMENT DISCUSSION

CASE REF: 1166/08

CLAIMANT: Gillian Lorraine Long

RESPONDENTS: 1. Northern Ireland Civil Service
2. Department for Social Development
3. Social Security Agency
4. Alistair McLean
5. Jimmy Maguire
6. Carmel Downey

DATE OF HEARING: 4 March 2010

REPRESENTATIVES OF PARTIES:

CLAIMANT BY: The claimant was represented by Mr B Mckee,
Barrister-at-Law, instructed by McCartan Turkington & Breen, Solicitors.

RESPONDENTS BY: The respondents were represented by Mr Lunny, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

Case Management Discussion
Record of Proceedings

1. On 29 December 2009, having received written submissions from counsel for both parties, I ruled (as communicated to the parties’ representatives in correspondence), that “due to the absence of agreed facts the Chairman is not satisfied that the case is appropriate for a PHR, therefore he has directed that a CMD will be arranged to timetable the case for hearing”.

2. The respondents’ solicitor sought a review of that interlocutory decision. The matter came before the tribunal on 4 March 2010. In light of the decision in Re Darley, it was considered inappropriate to proceed with a Review Hearing. It was agreed that the respondents’ counsel should instead renew his application for a Pre Hearing Review. The matter therefore progressed by way of a further Case Management Discussion.

3. I already had the benefit of very helpful written submissions from Mr Lunny and Mr McKee. The following facts are admitted by the respondents:

(1) The claimant is not disabled.

(2) The claimant is a primary carer for a disabled person.

4. The relevant legal issues now remaining are as follows:

(i) Does the respondents’ duty under Section 4A of the Disability Discrimination Act 1995 to make reasonable adjustments extend to protect persons such as the claimant who are not themselves disabled but who are primary carers for a disabled person?

5. It would appear that the admitted facts referred to above may be sufficient to address the legal issues at a Pre Hearing Review. This was the position adopted by Mr Lunny for the respondents. However, Mr Mckee preferred to take a wider approach to the issue of facts and reference was made in this regard to the respondent’s solicitor’s correspondence of 11 January 2010 and in particular paragraph 3g which reads as follows:-

“However, for the avoidance of doubt and in an effort to progress the matter, the Respondent confirms that it is prepared to admit all of the facts alleged by the Claimant for the purposes of the determination of the preliminary issues of law only and without prejudice to its right to contest the facts if the actual determination of the preliminary issues should not dispose of the mailer. This approach is, the Respondent submits, consistent with the decided cases and provides the Tribunal with the ‘factual nexus’ [a phrase used in the Claimant’s most recent submission on the issue] which the Claimant alleges, and the Tribunal appears to accept, must exist before the relevant legal issues can be considered.”

6. I expressed my concern that agreeing facts on the above basis may present some difficulties. However, I was referred to the cases of Coleman —vAttridge Law and Another [2008] ICRII28 together with the ECJ judgment in Coleman and to the Irish Supreme Court’s decision in McCabe —vIreland & Others (1999) 4 1R151, all of which are referred to at some length in Mr Lunny’s written submissions. In addition Mr Mckee referred to paragraph 28 of the ECJ judgment in Coleman which reads as follows:-

‘While accepting that the questions put by the referring tribunal are
based on an actual dispute, the Netherlands Government called into question the admissibility of the reference for a preliminary ruling on the basis that, given that these are preliminary questions raised at a Preliminary Hearing, all the facts at issue have not been established. It points out that, for the purposes of such a Preliminary Hearing, the

National Court or Tribunal presumes that the facts are as related by the claimant.”

7. Having considered the matter further, I am now satisfied that a PHR should be convened on the above legal issues.

Chairman ____________________
Date:

CLAIMANT’S SKELETON ARGUMENT

This is a Pre-hearing Review to address the issues set out at Section A. The pleadings, notices and records of case management discussions are set out in Section B.

Facts have been agreed between the parties and are set out in Section C.

Background

1. The claimant is the primary carer for her disabled child. During school terms her child is cared for. During school holidays the claimant has sole caring responsibilities. Her son requires constant supervision.

2. The claimant is employed by the respondent as an administrative assistant in the Benefit Shop at Castle Court in the centre of Belfast. She is a civil servant.

3. The terms and conditions of civil servants are contained in a plethora of documents. Terms and conditions can vary historically by department, agency and locality. The Department of Finance and Personnel is in the process of consolidating the common terms and conditions into a Staff Handbook.

4. One of the terms and conditions of employment relates to the right to apply for Term Time Leave. The terms are contained in chapter of the Staff Handbook. Term Time leave is a special form of flexible working which affords staff to take time off during the school holidays.

5. Members of staff apply for term time in December of the preceding year. The applications are considered according to criteria.

6. The claimant’s case is that the respondent should make a reasonable adjustment in the criteria applied which accounts for members of staff like her who have primary caring responsibilities for disabled children.

7. The claimant contends that the criteria applied have an indirectly discriminatory effect on members of staff such as her who have primary caring responsibilities for disabled children. This argument relies on the principles that

(1) indirect discrimination on the grounds of disability is unlawful, and

(2) that it is unlawful to indirectly discriminate against an employee who has primary caring responsibility for a disabled person in a manner which relates to that caring responsibility.

8. This claimant also contends that a duty to make a reasonable adjustment is owed to a primary carer for a disabled person.

9. The Staff Handbook applies to all Northern Ireland Civil Servants therefore the issues raised in this case resonate beyond the scope of the particular claimant. Further, the extent of what has been termed “associative” discrimination is of general application.

The Iegislation

10. The principle of equality applies in the context of any activity covered by EC law, irrespective of any specific legislative measure and whether the activity concerned arises in the state or private sphere.¹

11. A national court must not apply a domestic legislative measure which is operative in an activity covered by EC law if it is in breach of the principle of equality.²

12. The fact that there is no specific legislative measure in place, or the transposition date for a specific measure in the field of equality and non-discrimination has not yet expired does not relieve the member state of the obligation to conform to the principle of equality in relation to any matter falling within the defined activities of the Community.

13. Where specific legislative measure are in place in the form of Council Directives, Member States, including courts, are obliged to desist from taking action which frustrates their objectives from the date of its publication and therefore before the transposition date.

14. Member states are required to guarantee the effectiveness of EC rights.

15. Member States must secure access to effective judicial process and the availability of effective remedies for a breach. This requires sanctions which are such as to guarantee real and effective judicial protection and that have a real

¹Man gold v Helm [20061 IRLR 143, ED JudgmentAdvocate-General’s Opinion at paras 83-84 and 101 and
the ED judgment at paras 30-32; Kucukdeveci v Swedex GmbH [2010] IRLR 346 ED at paras 79-80

²Rodriqeuz Caballero v Fonda de Garontia Salarial [2003] RLR 115

deterrent effect. In the context of discrimination this principle requires that full monetary compensation is available and any rule limiting its availability must not be applied.³

16. Article 13 of the Treaty of Rome as inserted by Article 6A of the Treaty of Amsterdam provides that the European Council may take appropriate action to combat discrimination based on disability (amongst other matters).

Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community1 the council acting unanimously on a proposal from the Commission and after consulting the European Parliament may take appropriate action to combat discrimination based on ...disability...”

17. Pursuant to Article 13 the Council adopted Directive 2000/78: the Framework Directive which lays down the general principles concerning the equality of treatment in employment.

18. Recital (12) provides that
“any discrimination or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community”

19. Recital (16) provides:
“The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability”

20. Recital (20) provides:
Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment patterns of working time, distribution of tasks or the provision of training or integration resources.

21. The first two articles of the Framework Directive4 define the purpose of the directive and the principle of equal treatment as:

³Marshall v Southampton and South West Area Health Authority [1993] IRLR 445, [1993]ICR 445 ⁴2000/87/EC

Article 1

The purpose of tis Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment

Article 2

1 For the purposes of this Directive, the “principal of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article1.

22. Article 2(2)(b) provides that indirect discrimination:

…shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a ... particular disability at a particular disadvantage compared with other persons

23. Article 2(2)(b)(i) provides that there will not be indirect discrimination if the provision criterion or practice is objectively justified:

(i). That provision, criterion or practice is objectively justified by a legitimate aim and means of achieving that aim are
appropriate and necessary,

24. Further, indirect discrimination will not be taken to have occurred where an employer who is obliged by national law to take appropriate measures in order to eliminate the disadvantages has done so

(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

25. Article 5 introduces the obligation to provide reasonable accommodation.

In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or

advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.

26. I will now consider how national legislation has been promulgated to implement the UK’s obligations under the Framework Directive. I have set these out in the same order in which they are mentioned in the directive: religion or belief, disability, age and sexual orientation.

27. Indirect Discrimination against employees on the grounds of religion and belief is prohibited by in Northern Ireland by article 3(2A) of the Fair Employment and Treatment (Northern Ireland) Order 1998

(2A) A person also discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of any provision referred to in paragraph (2B)if—

(a)
(b) he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—
(I) which puts or would put persons of the same religious belief or of the same political opinion as that other at a particular disadvantage when compared with other persons;
(ii) which puts that other at that disadvantage; and
(iii) which he cannot show to be a proportionate means of
achieving a legitimate aim.

(2B) The provisions mentioned in paragraph (2A) are—

(a) Part Ill;

28. The Disability Discrimination Act 195 does not include an explicit prohibition on indirect discrimination against employees. There is a provision which applies

where a provision, criteria or practice is applies only to a limited sub-set of people. This is considered under reasonable adjustment below.

29. Indirect Discrimination against employees on the grounds of age is prohibited in Northern Ireland by regulation 3(1)(b) of the Employment Equality (Age) Regulations (Northern Ireland) 2006

3.—(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“8”) if —
(a)
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but—
(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and
(ii) which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

30. Indirect Discrimination against employees on the grounds of sexual orientation is prohibited in Northern Ireland by regulation 3(1)(b) of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003

3.—(I) For the purposes of these Regulations, a person (“A”)
discriminates against another person (“B”) if—
(a)
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same sexual orientation as B, but—
a which puts or would put persons of the same sexual orientation as B at a particular disadvantage when compared with other persons,

(ii) which puts B at that disadvantage, and

(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.

31. The Equality Act 2010 defines indirect discrimination in section 19:

19 - (I) A person (A) discriminates against another (B) if A applies to
B a provision, criterion or practice which is discriminatory in relation
to a relevant protected characteristic of B’s.
(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not shore it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

32. The protected characteristics set out in 19(3) include amongst others, religion and belief, disability, age and sexual orientation. The Act with the exception of sections 82, 105(3) and (4), and 199 does not extend to Northern Ireland.

Indirect Discrimination

33. Prior to the decision of the House of Lords in Lewisharn v Malcolm⁵ it was arguable that indirect discrimination would be protected by the provisions of the Disability Discrimination Act which outlawed discriminatory treatment related to disability. The characteristics required of a comparator takes indirect discrimination outside the scope of disability related discrimination.

34. The decision in Malcolm prompted the redrafting of disability discrimination legislation as Parliament clearly intended the pre-Malcolm interpretation of disability-related discrimination to apply. This has resulted in provisions in the Equality Act 2010 which introduce indirect discrimination on the grounds of disability⁶, and clearly define the appropriate comparator in cases of disability

⁵[2008] 1RLR 700
⁶ Section 19 as set out above

discrimination. This Act came into force in England Scotland and Wales on 1^st October 2010.

35. It should be noted, therefore, that Northern Ireland remains the only part of the United Kingdom in which there is no domestic legislation specifically outlawing indirect discrimination on the grounds of disability.

36. It is perhaps worth noting that indirect discrimination on the grounds of disability was considered during the process leading up to the introduction of the Disability Discrimination Act 1995. The 1994 Green Paper: A consultation on Government Measures to tackle discrimination against disabled people⁷ provided that it would be “more difficult to tackle effectively where disabled people are in involved because disability occurs in many forms”

37. The 1995 White Paper Ending Discrimination against Disabled People⁸ included the statement that “a general prohibition of indirect discrimination ... could have unforeseen circumstances which were unfairly burdensome for businesses”. However, it was accepted that certain practices which had an indirect effect upon disabled people should be prevented.

38. There is no objection in principle to protection against indirect discrimination being extended to those who are disabled it has already been included in UK legislation. It is required by the directive.

39. Therefore, the claimant argues that the only question left is whether those who are associated with disabled people are protected from indirect discrimination by operation of the directive.

Associative Discrimination

40. The directive protects non-disabled people who, in the context of their employment, suffer direct discrimination and/or harassment because they are associated with a disabled person.⁹

41. The reasons behind protecting those associated with a disabled person were succinctly put in the opinion of Advocate-General Poiares Maduro:

12 ... directly targeting a person who has a particular characteristic

is not the only way of discriminating against him or her; there are

⁷1994: London, Department of social Security
⁸1995: London, HMSO
⁹Coleman v Attridge Law LLP [2008] IRLR 722 ECJ

also other, more subtle and less obvious ways of doing so. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they too, affect the persons belonging to suspect classifications.

13 Indeed, the dignity of the person with a suspect characteristic is affected as much by being directly discriminated against as it is by seeing someone else suffer discrimination merely by virtue of being associated with him. In this way, the person who is the immediate victim of discrimination not only suffers a wrong himself, but also becomes the means through which the dignity of the person belonging to a suspect classification is undermined.

14 Furthermore, this subtler form of discrimination undermines the ability of persons who hove a suspect characteristic to exercise their autonomy. For instance, the autonomy of members of a religious group may be affected (for example, as to whom to marry or where to live) if they know that the person they will marry is likely to suffer discrimination because of the religious affiliation of his spouse. The same can happen, albeit to a lesser extent with individuals who are disabled. People belonging to certain groups are often mare vulnerable than the average person, so they have come to rely on individuals with wham they are closely associated for help in their effort to lead a life according to the fundamental choices they have made. When the discriminator deprives an individual of valuable options in areas which are of fundamental importance to our lives because that individual is associated with a person having a suspect characteristic then it also deprives that person of valuable options and prevents him from exercising his autonomy. Put differently, the person who belongs to the suspect classification is excluded from a range of possibilities that would otherwise have been open to him.

42. The Advocate-General identified three forms of discrimination: direct, harassment and indirect10. He classified thee prohibitions in the directive relating to two, direct and harassment, as “exclusionary” that is “after coming into force of the Directive it is no longer permissible for these considerations to figure in

¹⁰ Paragraph 19

the employer’s reasoning when she decides to treat an employee less favourably”.¹¹

43. In contrast indirect discrimination does not require intention or reasons on the prohibited grounds. The whole point of the prohibition of indirect discrimination is that it involves apparently neutral provisions which may have been implemented innocently or even in good faith.

44. The UK government had argued that associative discrimination should not apply to indirect discrimination. The distinction drawn by the Advocate General provided a basis upon which the Court could have allowed Ms Coleman’s reference whilst agreeing with the UK’s position, as he puts it at the end of paragraph 19:

It is for this reason that even f we were to accept the argument of the United Kingdom Government that discrimination by association is clearly outside the scope of the prohibition of indirect discrimination that does not mean in any way that it also falls outside the scope of the prohibit/on of direct discrimination and harassment On the contrary, including discrimination by association in the scope of the prohibition of direct discrimination and harassment is the natural consequence of the exclusionary mechanism through which the prohibition of this type of discrimination operates.

45. It should be noted that the imperative in the directive not to discriminate whatsoever draws no such distinction between direct and indirect discrimination. The Court in reaching its conclusion referred to Articles 1 and 2(1), and then concludes:

38 Consequently, it does not follow from those provisions of Directive 2000/78 that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the Directive. On the contrary, the purpose of the Directive, as regards employment and occupation, is to combat a/I forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of

¹¹Paragraph 18

Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability.

46. The Court of Justice further considered the restrictive definitions of the category of people protected by the directive but concluded:

50 Although, in a situation such as that in the present case, the person who is subject to direct discrimination on grounds of disability is not herself disabled, the fact remains that it is the disability which, according to Ms Coleman, is the ground for the less favourable treatment which she claims to have suffered. As is apparent from paragraph 38 of this judgment Directive 2000/78, which seeks to combat all forms of discrimination on grounds of disability in the field of employment and occupation, applies not to o particular category of person but by reference to the grounds mentioned in Article 1.

47. This is a wide conclusion. It should be noted:
a. that it is the ground of the less favourable treatment which is significant, that it is a ground protected by the directive
b. that in this context the goal of the directive is to combat all forms of discrimination on the protected grounds: the forms of discrimination are direct, indirect, harassment, victimisation and failure to make reasonable accommodation
c. a limiting factor is the field within which these principles operate: in this case employment

48. The Court then continues to deal with the particular situation of Ms Coleman who had alleged two forms of discrimination: harassment and direct discrimination. The first question before the court related to direct discrimination and the conclusion was as follows:

51 Where it is established that an employee in a situation such as that in the present case suffers direct discrimination on grounds of disability, an interpretation of Directive 2000/78 limiting its application only to people who are themselves disabled is liable to deprive that Directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee.

49. The Court then moved on to consider the second part of question 1 relating to harassment, and concluded as follows:

58 Since, under Article 2(3) of Directive 2000/78, harassment is deemed to be a form of discrimination within the meaning of Article 2(1), it must be held that, for the same reasons as those set out in paragraphs 34 to 51 of this judgment that Directive, and, in particular, Articles I and 2(1) and (3) thereof, must be interpreted as not being limited to the prohibition of harassment of people who are themselves disabled.

50. This is consistent with the general principle in paragraph 50. Indirect discrimination is also a form of discrimination and therefore it follows that the protection of the directive against indirect discrimination in Articles 1 and 2(1) should be interpreted as not being limited to the prohibition of harassment of people who are not themselves disabled.

51. The claimant therefore contends that she is protected against indirect discrimination on the grounds of disability if she as a primary carer for her disabled.

52. The claimant may rely directly on the Framework Directive in this instance, but also contends that the Disability Discrimination Act 1995 as it continues to apply to Northern Ireland is inconsistent with the Directive.
Relationship between Indirect Discrimination and Reasonable Adjustment

53. The respondent is not caught by the operation of the directive if, either it shows an objective justification, or if national legislation relating to reasonable accommodation applies.

54. Of course there are distinctions between indirect discrimination and reasonable adjustment.
a. Indirect discrimination does not require any intent to discriminate: it is the effect of the provision, criterion or practice which is relevant, and
b. the obligation to make a reasonable adjustment does not arise if the employer did not know or could not reasonably be expected to know that

the person has a disability and is likely to be affected in the way mentioned.¹²

55. Reasonable accommodation imposes a positive obligation on employers. In certain circumstances in which that obligation applies, the provisions prohibiting
indirect discrimination will also apply. Within that subset of people, the provision, criteria or practice will not be held to be unlawful provided the employer has complied with his positive obligations under article 5.

DIAGRAM I

The diagram above illustrates the overlap between the positive obligation under article 5 and the prohibitory provisions of article 2. The provisions of the Disability Discrimination Act which deal with provision, criterion or practice (section 4A(1)(a)) deal only with the imposition of a positive obligation of reasonable adjustment, thereby leaving those outside the subset of Article 2(2)(b)lii) without a remedy other than reasonable adjustment: they cannot challenge the lawfulness of the provision, criterion or practice as entitled under the Framework Directive. This is the core deficiency of the Disability Discrimination Act. This is remedied for the rest of the UK by the Equality Act

2010.

Reasonable Adjustment

56. The purpose of reasonable accommodation is to “guarantee compliance with the principle of equal treatment in relation to persons with disabilities”

¹² Section 4A(3)(b)

57. The principles for extending the protection to reasonable adjustment, are the same as those already relied upon for indirect discrimination. The nature of reasonable adjustment (and reasonable accommodation) is however, peculiar to disability discrimination.

58. The European Court of Justice acknowledged that some of the provisions of the directive related specifically to disabled people.

43 ...recitals 16 and 20 in the preamble to Directive 2000/78 indicate, the measures in question are intended to accommodate the needs of disabled people at the workplace and to adopt the workplace to their disability. Such measures are therefore designed specifically to facilitate and promote the integration of disabled people into the working environment and, far that reason, can only relate to disabled people and to the obligations incumbent on their employers and, where appropriate, on the member states with regard to disabled people.

59. This leaves the matter of associative discrimination on the basis of reasonable accommodation to be decided.

60. The respondent has denied that it is under any obligation under national law to make such an accommodation for the claimant on the ground that she is not disabled herself. It is clear that the terms of the Act do not require it.

61. The claimant contends that the principle of equality of treatment requires protection to be afforded to the claimant in these circumstances. The purpose of Article 5 is to “guarantee” compliance.

62. The present case highlights this issue. The respondent is aware of the claimant’s son’s disability. The respondent is aware of the adjustment (term time working) which would allow the claimant to continue in her post and care for her son. The harassment of the claimant because of her son’s disability is unlawful.

63. If the claimant is correct, the imposition of a provision which would put her at a disadvantage because of her caring responsibilities for her son is unlawful. In such circumstances, it seems anomalous that the refusal to make a reasonable adjustment would also not be unlawful. The point here is that the provisions of the Disability Discrimination Act 1995 mirror the provisions of the directive relating to indirect discrimination:

4A. - (1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employer,

(b)

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

64. Therefore, to the extent that the claimant is seeking relief, that is, against the application of a provision, criteria or practice, it is contended that the terms of Act should in fact be interpreted in compliance with “indirect discrimination” in the Directive not reasonable accommodation.

65. Reasonable adjustment under national requires knowledge. Therefore,

a. the employer is aware, or ought to be aware of the disability

b. the employer is aware or ought to be aware of the less favourable effect

66. Further, the duty to make a reasonable adjustment is subject to a consideration of the proportionality of the burden of measures which can be taken to alleviate the less favourable treatment¹³.

67. Discrimination on the grounds of failure to make a reasonable adjustment under section 4A(1)(a) therefore straddles the exclusionary and inclusionary principles as defined by the Advocate General in Coleman.

68. The claimant contends that given the requirements of knowledge and proportionality, the purpose of guaranteeing compliance with the principle of equality should be interpreted as extending the requirement to appropriate measures to a primary carer for a disabled person.

69. The Disability Discrimination Act should be interpreted in such a way as to comply with this obligation.

D J B McKee, Bar Library, Belfast.

¹³Section 18B

IN THE INDUSTRIAL TRIBUNAL IN NORTHERN IRELAND

CASE REF No. 1166/O8IT

BETWEEN:

GILLIAN LONG

CLAIMANT

AND

SOCIAL SECURITY AGENCY & OTHERS

RESPONDENTS

SKELETON ARGUMENT ON BEHALF OF THE RESPONDENTS

1. The three preliminary legal issues for consideration at the PHR scheduled to take place on 05.11.10 are as follows:

i. Does the Respondent’s duty under the section 4A of the Disability Discrimination Act 1995 to make reasonable adjustments extend to protect persons such as the Claimant who are not themselves disabled hut who are the primary carers for a disabled person?

ii. Does the duty to make reasonable accommodation in relation to persons with disabilities under article 5 the Council Directive 2000/78/EC (“Framework Directive”) extend to protect persons such as the Claimant who are not themselves disabled but who are the primary carers for a disabled person?

iii. Does the prohibition on indirect disability discrimination contained in ‘the Framework Directive’ extend to protect persons such as the Claimant who are not themselves disabled hut who are associated with a disabled person?

2. The Respondents propose to deal with these legal issues in the order in which they appear above.

Does the Respondent’s duty, under the section 4A of the Disability Discrimination Act 1995 to make reasonable adjustments extend to protect persons such as the Claimant who are not themselves disabled but who are the primary carers for a disabled person?

3. The Respondents contend that this question should be answered in the negative.

4. Section 4A of the 1995 Act provides as follows:

Employers: duty to make adjustments [added SR 2004/55 1 Oct 2004]
4A. - (1) Where-
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
(2) In subsection (1). “the disabled person concerned” means--
(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;
(b) in any other case, a disabled person who is-

(i)an applicant for the employment concerned, or
(ii) an employee of the employer concerned
(3) Nothing in this section imposes any duty on an employer in relation to a 4isahled person if the employer does not know and could not reasonably he expected to know-
(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may he, an applicant for the employment; or
(h) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1). [emphasis added] –

5. The Respondents submit that the wording of Section 4A is clear:, the duty to make reasonable adjustments is engaged only where the impugned “provision, criterion or practice” or “physical feature” puts a disabled person who is an employee of the impugned employer at a substantial disadvantage in comparison with persons who are not disabled. The following extract from a briefing note by Barbara Cohen [DLA Briefings, vol. 38, November 2009, briefing 547, pages 26-28, at page 27] regarding the decision in EBR Attridge Law -v- Coleman UKEAT/0071/09/JOJ October 30, 2009, ‘supports the Respondent in this regard: “It is important to note, however, that the words read into the DDA by the judge do not impose a duty on an employer to make ‘reasonable adjustments’ [suchas allowing part-time working] under the DDA for carers or others associated with a disabled person — the decision affects only claims of direct discrimination and harassment”.

6. The submissions at paragraphs 7 to 11 below, relating as they do to Article 5 of Council Directive 2000/78/EC [upon which Section 4A is based], apply equally to this legal issue and the Respondents therefore rely upon them in support of their contention that the Section 4A protection does not extend to protect persons such as the Claimant who are not themselves disabled but who are the primary carers for disabled persons.

Does the duty to make reasonable accommodation in relation to persons with disabilities under article 5 the Council Directive 2000/78/EC [the “Framework Directive”! extend to protect persons such as the Claimant who are not themselves disabled but who are the primary carers for a disabled person?

7. The Respondents contend that this question should be answered in the negative.

8. The wording of each of Article 1 –

The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of ... disability, as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment, [emphasis added]

and Article 2[2][a] —

For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where
one person is treated less favourably than another is, has been or would he treated in a comparable situation, on any of the grounds referred to in Article 1; [emphasis added]

of the Framework Directive can be contrasted with the wording of Article 5 –

In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall he provided. This means
that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not he disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned. [emphasis added]

9. Article 1 refers simply to discrimination on the ground of disability. It does not require a victim of discrimination on the ground of disability to be disabled. Article 2[21[a] refers simply to a “person” being treated less favourably on the ground of disability. Once again, it does not require a victim of discrimination on the ground of disability to be disabled. However, the wording of Article 5 stands in contrast to these earlier provisions. It clearly imposes an obligation upon employers to take appropriate measures to enable “a person with a disability to have access to, participate in, or advance in employment, or ... undergo training”. This wording is entirely consistent with recitals 16 and 20 in the preamble to the Directive:-

[16] The provision of measures to accommodate the needs of disabled people at the
workplace plays an important role in combating discrimination on grounds of disability,

[20] Appropriate measures should he provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources. [emphasis added]

10. The following authorities support the Respondents’ contention that the Article
5/reasonable accommodation protection is available only to protect disabled persons and not to protect non-disabled persons who are associated with them:-

a. The judgment of the Court of Justice of the European Communities in Coleman - v- Attridge Law [C-303/06] [2008]ICR 1128 [ECJ Grand Chamber]:

39. It is true that Directive 2000/78 includes a number of provisions which, as is apparent from their very wording, apply only to disabled people. Thus, article 5 provides that, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities; reasonable accommodation is to he provided. This means that employers must take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer

…..
42. Nevertheless, it must be noted in that regard that the provisions referred to in paras
39 and 40 of this judgment relate specifically to disabled persons either because they are provisions concerning positive discrimination measures in favour of disabled persons themselves or because they are specific measures which would be rendered meaningless or could prove to be disproportionate if they were not limited to disabled persons only. Thus, as recitals 16 and 20 in the preamble to Directive 2000/78 indicate, the measures in question are in tended to accommodate the needs of disabled people at the workplace and to adapt the workplace to their disability. Such measures are therefore designed specifically to facilitate and promote the integration of disabled people into the working environment and, for that reason, can only relate to disabled people and to the obligations incumbent on their employers and, where appropriate, on the member states with regard to disabled people.

b. The following extract from Harvey on Industrial Relations and Employment L Division L, 3, B, para. [398]:-

In circumstances where a provision, criterion or practice or physical feature of premises exists, and places the disabled person at a substantial disadvantage when compared with persons who are not disabled, the employer (or prospective employer) is under a duty to take such steps as are reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice having that effect. As was noted by the House of Lords in its decision in Archibald v Fife Council [2004] UKHL 32, [20041 IRLR 651 [2004] ICR 954, [2004] 4 All ER 303 (per Baroness Hale at para 47), the duty necessarily requires the disabled person to he treated more favourably in recognition of their special needs. It is thus not just a matter of introducing a ‘level playing field’ for disabled and non-disabled alike, because that approach ignores the fact that disabled persons will sometimes need special assistance if they are to be able to compete on equal terms with those who are not disabled, (Note that this ‘more favourable treatment’ can only be owed to people who are disabled, the concept of associative discrimination not beingapylicable in this context; see Coleman v Attridge Law: C-303/06 12008 JIRLR 722, 1200811CR 1128.) [emphasis added]

c. The following extract from an article in the Common Market Law Review by Lisa Waddington [CML Rev 2009 665 at 676]:-

Whilst the Court did not reflect on the status of indirect discrimination in its judgment, it did make a strict separation between those articles which cover only disabled people, such as Article 5 and Article 7[2], and those provisions which address

discrimination ‘on the grounds Isic] of disability where the focus was on the characteristic which led to the disadvantage, rather than on whether the claimant actually possessed that characteristic. [emphasis added]

11. Finally on this issue, the Respondents submit that it is noteworthy
2010 does not purport to extend the obligation placed upon reasonable adjustments to cover non-disabled persons such as instant case. Sections 20[3], 20[4], and 20151, as well as paragraphs Schedule 8, of the Act are of particular relevance in this regard.

that the Equality Act employers to make the Claimant in the 2[21[c], 4, and 511] of

Does the prohibition on indirect disahilihi discrimination contained in ‘the Framework Directive’ extend to protect rsons such as the Claimant who are not themselves disabled but who are associated with a disabled person?

12. The Respondents contend that the said prohibition on indirect disability discrimination does not extend to protect persons such as the Claimant.

13. Although Article 2 of the Directive begins with the following paragraph -
[1.] For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall he no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

it is followed by two further paragraphs [set out below] which, respectively, define direct discrimination and indirect discrimination and between which there is, in the Respondents’ submission, a very significant difference —

[2.] For the purposes of paragraph 1:

(a) direct discrimination shall he taken to occur where one person is treated less favourably than another is, has been or would he treated in a comparable situation, on any of the grounds referred to in Article 1;

(ii) indirect discrimination shall he taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

i. that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate
and necessary, or

ii. as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

14. For direct discrimination to occur there simply has to be less favourable treatment of one person than of a comparator. on the ground of disability. However, for indirect discrimination to occur there has to exist an apparently neutral provision, criterion or practice which would put “persons having ... a particular disability ... at a particular disadvantage compared with other persons” [emphasis added]. Thus Article 2[2][b], unlike Article 2[2][a], requires the ‘victim’ of the discrimination to have a disability. In the instant case, it is accepted that the Claimant has no disability. Accordingly, even if the prohibition on indirect discrimination applies in national law [which is not accepted by the Respondents- see further paragraph 18 below in this regard] the Claimant cannot avail of the protection afforded by the said prohibition given the fact that she is not a ‘person having ... a particular disability’.

15. The following authorities support the Respondents’ contention that the protection afforded by the Article 2 prohibition on indirect discrimination is not available for the Claimant given the fact that she is not a ‘person having ... a particular disability’: a The following extract from an article in the European Anti-Discrimination Law Review by Lisa Waddington’ [July 2007, Issue 5, pages 13-21] which predated the
ECJ decision in Coleman:-

It has been argued that the two Anti-Discrimination Directives2 should he interpreted as prohibiting discrimination by association on all the covered grounds. The wording of the provisions addressing direct discrimination and harassment readily lend themselves to such an interpretation, and it is argued that such an interpretation is the most logical one available. The provisions concerning indirect discrimination do not, according to a literal interpretation, cover discrimination by association; however, one could argue such an interpretation would be in line with the purposes of the Directives. Like the Directives, most national transposition legislation does not explicitly prohibit discrimination by association. However, it is submitted that, in the majority of cases, the national legislation is easily capable of being interpreted in this light, and that the confirmation by the ECJ in the Coleman case that direct discrimination and harassment by association are prohibited would cause little disruption at the national level….

As noted above, the provisions of the Directives addressing indirect discrimination and reasonable accommodation seem more restricted, and, on a literal meaning, confined to prohibiting the discrimination of individuals who actually possess the relevant characteristics. Nevertheless, this should not be taken as a signal that issues of discrimination by association cannot arise with regard to indirect discrimination and reasonable accommodation. One example of an area where there is a very real risk of such discrimination relates to individuals who, as a result of caring responsibilities for someone who is dependent (whether as a result of age [young or old] or disability], cannot meet certain demands of the employer relating to availability for work, e.g. working shifts, or over night stays away from home. Where these requirements are not strictly required [not ‘objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’] they could be classified as a form of indirect

¹Chair in European Disability Law, Maastricht University.
² The ‘Framework Directive’ [2000/78/EC] and the ‘Racial Equality Directive’ [2000/43/EC].

discrimination; where they are required, a reasonable accommodation could provide a solution. However, the opportunity to raise such arguments will only exist where
the legislation covers such forms of discrimination by association This may not seem to be the case for the current EC Directives, but Member States may extend the protection in this way.
[emphasis added]

b. The following extracts from the opinion of the Advocate General in Coleman S-v-Attridge Law [C-303/06] [2008] 1CR 1128 [ECJ Grand Chamber]:—

[17.] ... By adopting Directive 2000/78 the Council has made it clear that it is wrongful
for an employer to rely on any of these grounds in order to treat an employee less well than his or her colleagues. As soon as we have ascertained that the basis for the employers conduct is one of the prohibited grounds then we enter the realm of unlawful discrimination.

[18.] In the sense described above, the Directive performs an exclusionary function: it excludes religious belief age, disability and sexual orientation from the range of permissible reasons an employer may legitimately rely on in order to treat one employee less favourably than another. In other words, after the coming into force of the Directive it is no longer permissible for these considerations to figure in the employer’s reasoning when she decides to treat an employee less favourably.

[19.] Directive 2000/78 prohibits direct discrimination (defined in article 2(2)(a) as a situation “where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in article 1”), harassment (defined in article 2(3) as conduct relating to any of the grounds listed in article 1 that “ takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment”), and indirect discrimination (defined in article 2(2)(b) as a situation where “ an apparently neutral provision, criterion or practice would put persons having a particular religion or belief a particular disability, a partict4ar age, or a particular sexual orientation at a particular disadvantage compared with other persons” ). The distinguishing feature of direct discrimination and harassment is that they bear a necessary relationship to a particular suspect classification. The discriminator relies on a suspect classification in order to act in a certain way. The classification is not a mere contingency hut serves as an essential premise of his reasoning. An employer’s reliance on those suspect grounds is seen by the Community legal order as an evil which must he eradicated. Therefore, the Directive prohibits the use of those classifications as grounds on which an employer’s reasoning may be based. By contrast, in indirect discrimination cases the intentions of the employer and the reasons he has to act or not to act are irrelevant. In fact, this is the whole point of the prohibition of indirect discrimination:
even neutral, innocent or good faith measures and policies adopted with no discriminatory intent whatsoever will be caught if their impact on persons who have a particular characteristic is greater than their impact on other persons. (I have discussed the issue of past discrimination and equal treatment in the context of equality between men and women in my opinion in Briheche v Ministre de l’[ntérieur (Case C-319/03)

[2004] ECR 1-8807) It is this “disparate impact” of such measures on certain people that is the target of indirect discrimination legislation. The prohibition of such discrimination ties, in with the obligation of employers to accommodate those groups by adopting measures and designing their policies in a way that does not impose a burden on them
which’ is excessive com pared with that imposed on other people: see the discussion in Christine bus, “Anti-discrimination and Accommodation” (2001) 115 Harvard Law Review 642. In this way, while the prohibition of direct discrimination and harassment operates as an exclusionary mechanism (by excluding from an employer’s reasoning reliance on certain grounds) the prohibition of indirect discrimination operates as an inclusionary mechanism (by obliging employers to take into account and accommodate the needs of individuals with certain characteristics). It is for this reason that, even if we were to accept the argument of the United Kingdom Government that discrimination by association is clearly outside the scope of the prohibition of indirect discrimination, that does not mean in any way that it also falls outside the scope of the prohibition of direct discrimination and harassment. On the contrary, including discrimination by association in the scope of the prohibition of direct discrimination and harassment is the natural consequence of the exclusionary mechanism through which the prohibition of this type of discrimination operates.

c. The following extracts from an article by Juliet Carp in the New Law Journal [158 NLJ 1243 — 12th September 2008]:-

Purpose

Coleman indicates that the purpose of the Framework Directive is to safeguard individual autonomy and it seems logical to assume that this principle should he applied to the other discrimination Directives. Extension of discrimination by association to indirect discrimination would have the biggest impact on carers.
However, this was not the subject of the Coleman case and the general principles articulated in Coleman may not lead to confirmation that indirect discrimination by association is protected by the Directives for some time, if at all…

Wait and see

Although Coleman gives a good indication of the direction in which the ECJ is moving, it does not clearly oblige the government to, ensure protection against indirect discrimination by association. The government may decide to “wait and see”.
Coleman has helped carets of disabled children win protection against direct discrimination and harassment and that is likely to be extended to carers of the elderly. A freestanding right to different working arrangements to make care for others easier still does not exist.

d. The following extract from an article in the Common Market Law Review by Lisa Waddington [CML Rev 2009 665 at 675]:-

…The Court³ did not address, in any way, the situation with regard to indirect discrimination. However, an initial reading of the ... Directive appears to suggest that it does not protect people who are associated with someone with a disability from indirect discrimination. The ... Directive defines indirect discrimination as occurring where “an
apparently neutral provision, criterion or practice would put persons having ... a particular disability ... at a particular disadvantage compared with other persons”. The definition therefore seems to provide protection from indirect discrimination only for “persons having ... a particular disability” who are disadvantaged. As a consequence, it seems difficult to argue that an individual who is disadvantaged not because they have a disability, hut because someone they associate with has a disability, is protected from indirect discrimination as a result of this association under EC law. Such protection would only be possible if “persons having ... a particular disability” could be interpreted as including “persons who associate with persons having a particular disability”.
The Advocate General also noted the difference between, on the one hand, the prohibitions of direct discrimination and harassment, and, on the other hand, indirect discrimination. He concluded that, in the case of direct discrimination and harassment, there is a “necessary relationship” between the adverse treatment and the “suspect classification”, with the covered ground being the direct motivating factor for the adverse treatment. He argued that the Directive prohibits the use of those classifications or grounds as a basis for any employment related decision. He contrasted this situation with that existing under indirect discrimination, which involves apparently neutral measures which have a [usually] unintentional negative impact on members of the covered group…

Whilst the Court did not reflect on the status of indirect discrimination in its judgment, it did make a strict separation between those articles which cover only disabled people, such as Article 5 and Article 7[2], and those provisions which address discrimination ‘on the grounds [sic] of disability’, where the focus was on the characteristic which led to the disadvantage, rather than on whether the claimant actually possessed that characteristic. This may suggest that the Court might also interpret protection from indirect discrimination as being confined to persons with a disability. However, the reasons given for restricting the benefits of Articles 5 and 7 to people who have a disability do not seem to apply in the context of indirect discrimination [footnote: unless one could argue that extending indirect discrimination to cover individuals who associate with others who possess one of the covered characteristics would “prove to be disproportionate”], and the Court was silent on the issue.

Taking the opposing position, one could argue that the Court should, given the opportunity, interpret the prohibition of indirect discrimination as covering those who experience discrimination on the grounds that they associate with a disabled person — on the basis that this would be in line with the broad purpose of the Directives, even though it would not be in accordance with a literal interpretation of the wording. However, this would probably be a rather “ambitious” interpretation by the Court. Nevertheless, in light of the Court’s silence on the matter, it remains unresolved.

³The ECJ in Coleman.

e. The following extract from an article by Andrea Eriksson in the International Journal of Constitutional Law [2009 IJCL 731 at 751/752]:-

Second, the Courts judgment does not resolve the issue of whether indirect discrimination by association is also prohibited. With respect to indirect discrimination by association, the wording of the directives is clear; indirect discrimination, as defined in article 2(2)(b) of the Framework Directive, occurs where an apparently neutral provision would put “ persons having a particular [characteristic]” at a particular disadvantage. Similarly, it is “ persons of a racial or ethnic origin” or “persons of one sex” who are protected in the Race Directive and the Gender Directive, respectively. As the limit of interpretation lies in the wording of a legal rule, indirect discrimination by association is not prohibited by the directives [footnote: Gabriel N. Toggenburg, Discrimination by association: A notion covered by EU equality law?, 2008 EUR. L. REPORTER 87]. This means, for example, that an employer would not he sanctioned if he required for the promotion of employees to area managers that their spouses or partners move with them to that area, and if he refused to promote someone because the disabled spouse needed special care and, for this reason, could not move. Even if this is unsatisfactory, in light of the purpose of the principle of nondiscrimination, it is not for the Court hut for the legislative bodies of the EU to adjust the wording of the directives so as to include indirect discrimination by association.

16. Looking again to the new Equality Act 2010 it is noteworthy that it does not purport to extend the protection afforded by the prohibition on indirect discrimination beyond persons who are themselves disabled. The key provision in this regard is Section 19:-

19 Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected
characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—
a. A applies, or would apply, it to persons with whom B does not share the characteristic,
b. it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does
not share it,
c. it puts, or would put, B at that disadvantage, arid
d. A cannot show it to he a proportionate means of achieving a legitimate
aim.

(3) The relevant protected characteristics are — ... disability

17. If there existed a truly compelling argument to the effect that the protection afforded by the prohibition on indirect discrimination extended to cover persons such as the Claimant in the instant case, it must surely be the case that the new Equality Act would

have made express provision for same⁴. In the Respondents’ submission the fact that it does not- make such provision speaks volumes as to the merit of the Claimant’s argument-under this head.

18. Finally in this regard, the Respondents submit that it is questionable whether the Claimant can -seek to rely upon indirect discrimination at all. Article 2[2][b][ii] of the Directive provides that indirect discrimination cannot be said to occur where “the employer :.. is obliged, under national legislation, to take appropriate measures in line
- with the principles contained in Article in order to eliminate disadvantages entailed by such provision, criterion or practice”. The Respondent has at all times been under such an obligation [to make reasonable adjustments] under Section 4A of the 1995 Act As Pigott points out [160 NLJ 749 — 28th May 2010] the ‘reasonable adjustments’ provision in the 1995 Act [along with the prohibition on disability related discrimination] existed “in place of indirect discrimination”, In the circumstances, it is questionable whether the Claimant can seek to make any indirect discrimination case at all.

Noelle McGrenera QC
Donal Lunny
28 .10. 10

⁴An article by Georgina Andrews in the European Business Law Review [EBLR 2010 573] considers the [then] Equality Bill and, at p.580, reaches the following conclusion of relevance to this issue: “Not all forms of associative discrimination will be rendered unlawful. The provisions will relate only to cases of direct discrimination because of a protected characteristic. Cases of indirect discrimination will not be included. [The courts have adopted the same approach, restricting protection to cases of direct discrimination]”.