Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/1166_08IT.html
Cite as: [2011] NIIT 01166_08IT, [2011] NIIT 1166_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1166/08

CLAIMANT: Gillian Lorraine Long

RESPONDENTS: Social Security Agency and Others

WRITTEN REASONS FOR DECISION

Background

1. A decision on a pre-hearing review in this matter incorporating a record of a Case Management Discussion dated 4 March 2010 and written submissions from both parties’ Counsel, was issued to the parties on 25 November 2010, following a hearing on 5 November 2010.

2. The agreed issues before the tribunal on 5 November 2010 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?

3. The claimant’s case was that the respondents should make a reasonable adjustment in the criteria applied by the respondents in relation to applying for Term Time leave, (being a special form of flexible working which affords staff time off during school holidays), by taking into account members of staff such as herself who have primary caring responsibilities for disabled children. The claimant further contended that the criteria applied have an indirectly discriminatory effect on such members of staff. The claimant’s case has been carefully set out in her counsel’s skeleton argument which includes an analysis of the relevant European and national law.

4. The tribunal’s conclusion in its decision was, that having considered the agreed facts together with the relevant law as articulated in the skeleton arguments, it found itself persuaded by the respondents counsel’s analysis of the law and relevant authorities, and accordingly answered the questions posed in the issues before it, in the negative.

5. On 15 April 2011 (filed on 20 April 2011) Her Majesty’s Court of Appeal in Northern Ireland remitted the case to the tribunal to allow it to provide reasons for its decision in this matter.

6. In the reasons which follow, the tribunal does not consider it necessary to replicate in detail all of the relevant provisions of the Framework Directive together with other statutory provisions and extracts from the relevant authorities as these have been clearly set out in the submissions attached to the original decision. As certain matters overlap in relation to issues 1 and 2, it is considered appropriate to deal with these issues together.

REASONS

Issues 1 and 2 – Reasonable Adjustments and Duty to Make Reasonable Accommodation

7. (i) Section 4A of a Disability Discrimination Act 1995 as amended (“the Act”), is clear in stating that the duty to make reasonable adjustments arises only where a “provision, criterion or practice” or “physical feature” puts a disabled person who is an employee at a substantial disadvantage in comparison with persons who are not disabled.

(ii) Article 5 of the Framework Directive 2000/87/EC, upon which Section 4A is based, is equally clear in placing an obligation upon employers to provide reasonable accommodation and to ‘take appropriate measures 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 wording is consistent with recitals 16 and 20 in the preamble to the Framework Directive which refer to “the provision of measures to accommodate the needs of disabled people” and that “appropriate measures should be provided, ie, effective and practical measures to adapt the workplace to the disability”. In this context, the tribunal also regards it as significant that the wording of Articles 1 and 2 (2) (a) of the Framework Directive do not require a victim of discrimination on the ground of disability to be disabled. Article 2(2)(a) refers simply to “one person” being treated less favourably on the ground of disability. These provisions are in contrast to the wording in Article 5 of the Framework Directive which relates specifically to “a person with a disability”. Support for the contention that under Article 5 of the Framework Directive reasonable accommodation protection is available only to protect disabled persons and

not to protect non-disabled persons who are associated with them is provided by the judgement of the Court of Justice of the European Communities in Coleman v Attridge Law and Another (C-303/06) [2008] IRLR 722 ECJ (‘Coleman’):-

‘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 be 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 intended 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’.

(iii) The Employment Appeal Tribunal’s judgement in EBR Attridge Law v Coleman (No 2) [2010] IRLR 10 confirms that the Act can be construed, as required by the European Court of Justice in Coleman, so as to prohibit direct discrimination and harassment against an employee on grounds of caring for a disabled person, even though the Act protects only those who are disabled themselves. Mr Justice Underhill in his judgement stated that the Act could be construed so as to add new sub-sections dealing with direct discrimination and harassment to cover associative discrimination. He did not, however, decide to add any such new clause in Section 4A of the Act to cover claims arising from the duty to make reasonable adjustments.

(iv) Harvey on Industrial Relations and Employment Law at Division L, 398-398.01 states as follows:-

[398] The DDA provides that 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 …

[398.01]As was noted by the House of Lords in its decision in Archibald v Fife Council [2004] UKHL 32, [2004] IRLR 651, [2004] ICR 954, [2004] 4 All ER 303 (per Baroness Hale at para 47), the duty necessarily requires the disabled person to be 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 (or indeed perceived) discrimination not being applicable in this context; see Coleman v Attridge Law: C-303/06 [2008] IRLR 722, [2008] ICR 1128.)”

(v) It is also significant that the Equality Act 2010 in Great Britain does not extend the obligation placed upon employers to make reasonable adjustments to cover non-disabled persons such as the claimant in this case.

Issue 3 – Indirect Discrimination

8. (i) Article 2(2)(b)(ii) of the Framework Directive provides that indirect discrimination cannot be said to occur where ‘as regards persons with a particular disability the employer … 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’.

(ii) The respondent in this case has been under a duty to make reasonable adjustments under Section 4A of the Act. The reasonable adjustments provision together with the prohibition on disability related discrimination exist in the Act, essentially in place of indirect discrimination.

(iii) The tribunal also considered Article 2 of the Framework Directive which states:-

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

The subsequent paragraph defines direct discrimination and indirect discrimination. Direct discrimination occurs 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.

In the definition of indirect discrimination there must be an apparently neutral provision, criterion or practice which would put “persons having … a particular disability … at a particular disadvantage compared with other persons”.

The claimant in this case has no such disability and the tribunal is therefore satisfied that she cannot avail of the protection afforded under the Framework Directive.

(iv) Although the tribunal accepts that the provisions in the Framework Directive in relation to direct discrimination and harassment lend themselves to an interpretation prohibiting discrimination by association, the tribunal is satisfied that the provisions in the Framework Directive addressing indirect discrimination and reasonable accommodation are confined to prohibiting the discrimination of individuals who actually possess the relevant characteristics. The Advocate General in his opinion in Coleman summarises the position succinctly as follows:-

“(19)… while the prohibition of direct discrimination and harassment operates at an exclusionary mechanism (by excluding from an employer’s reasoning reliance of 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”.

(v) Therefore, although Coleman has assisted carers of disabled children to win protection against direct discrimination and harassment, it does not afford that protection to individuals such as the claimant in the context of indirect discrimination. Indeed such protection would only be possible if “persons having … a particular disability” could be interpreted to include persons who

associate with persons having a particular disability. The tribunal also attaches significance to the fact that the Equality Act 2010 does not purport to extend the protection afforded by the prohibition on indirect discrimination beyond persons who are themselves disabled.

Chairman:

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

Date decision recorded in register and issued to parties:

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