Carer wins landmark discrimination battle over employment rights

A woman who claimed she was forced to resign from her job because she has a disabled son today won her legal battle over discrimination.

Sharon Coleman says she suffered "discrimination by association" in breach of EU rules - and the European Court of Justice in Luxembourg agreed.

The landmark ruling declared that an EU Directive banning employment discrimination on grounds of disability is not limited to disabled people themselves, but covers their carers as well.

The verdict effectively gives new rights to millions of carers.

Employment and discrimination barrister Ed Williams, of London law firm Cloisters, said: "The significance of this ruling cannot be overstated.

"There are literally millions of carers in the UK and the rest of the EU who now have greater protection against discrimination."

He said the ruling had implications beyond disability discrimination. "Since the European Directive covers many other areas of discrimination, this ruling clarifies that the protection against associative discrimination ought to apply to the areas of religion or belief, age and sexual orientation as well.

"So, for example, an employee who is mocked for having an older partner, or a partner of a particular religion, or for their child's sexuality, will now be protected.

"This protection will now extend throughout Europe.

"As a result, UK employers will need to examine their recruitment and equal opportunity policies carefully to ensure they do not directly discriminate against those who are caring for the disabled or the elderly for example."

Ms Coleman's case was backed by the Equality and Human Rights Commission which said EU legal backing would ensure the UK's Disability Discrimination Act would have to provide protection on the grounds of someone's association with, and caring responsibilities for, a family member with a disability.

Ms Coleman took legal action after claiming she was forced to leave her job because she was not allowed as much flexibility in her work as parents of other children were.

She was already working for law firm Attridge Law when she gave birth to a disabled son in 2002. He suffers from serious respiratory problems, including apnoeic attacks, an involuntary halt to breathing.

As primary carer Ms Coleman wanted flexible working arrangements, but accepted voluntary redundancy in March 2005 and began a claim for constructive dismissal five months later.

She alleged discriminatory treatment because her son's condition meant she was treated less favourably than other staff and was therefore forced to leave.

And she claimed she was described as "lazy" at work, and that abusive and insulting comments were made about her and her child.

An Employment Tribunal hearing the case decided to refer it to the European Court for a ruling on whether EU discrimination laws covering the disabled could also apply to people not themselves disabled, but closely associated with a disabled person.

Today the Luxembourg judges ruled that "Community (EU) law protects an employee who has suffered discrimination on grounds of his child's disability".

The judgment said: "Where an employer treats an employee who is not himself disabled less favourably than another employee 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 the Directive."

The judges said the EU Directive was designed to combat all forms of discrimination and applied not to a particular category of person but "to the nature of the discrimination".

Interpreting the rules as limited only to people who were themselves disabled would be liable to "deprive the Directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee".

The ruling said the effective application of the law meant that the burden of proof fell on the employer, who had to show that there had been no breach of the principle of equal treatment at work.

The judges pointed out that Ms Coleman had complained that her employers refused to allow her to do her previous job on her return from maternity leave, refused to offer working hour flexibility, and made "abusive and insulting" comments about her and her child.

Alex Lock, employment partner at law firm Beachcroft LLP, said: "This is a landmark case and could well lead to a significant rise in claims of this kind. It signifies an added protection for both carers and parents of disabled children, who already enjoy the right to request flexible working for parents of disabled children under 18-years-old.

"The judgment will serve as a sharp reminder to employers to look at such requests dispassionately and fairly, and not allow any prejudice they may have to influence their decision.

"The knock-on effects of this judgment will be hugely significant."