Update: employment

The concept of associated discrimin­ation has a long history in discrimination law. As long ago as Showboat Entertainment v Owens [1984] ICR 65 the Employment Appeal Tribunal decided that a ‘white‘ person had been discriminated against on grounds of race because he was subjected to an unlawful instruction not to admit young ‘black‘ men into the showground because they were thought to be noisy and would make a nuisance of themselves. This approach has been maintained in later cases.

The only discrimination strands which have been largely excluded from the concept of associative discrimination are disability and sex, because of the way they are drafted. Up till the ECJ decision in the referral of ­Coleman v Attridge Law (Case C-3003/06, first reported on solicitorsjournal.com on 17 July 2008), the Disability Discrimination Act was though to protect only the disabled. It reads that way and it seemed common sense that it should be so.

Similarly, the Sex Discrimination Act protects individuals from discrimination on grounds of their own sex. So a man cannot bring a claim that he has been discriminated on grounds of his sex because he was asked to discriminate against a woman. The protection from harassment is wider and includes conduct which is offensive and unwanted and is sex-based (whether or not it is the complainant’s own sex). So a man could complain of harassment in respect of lewd jokes about women.

Disability discrimination by association

In Coleman against EBR Atridge Law LLP ( formerly Coleman v Attridge Law) the claimant complained of discrimination and harassment by her employer based on various allegations of harassment and less favourable treatment which resulted from her being the primary carer for her disabled son. She said that her employer had commented in unfavourable terms about the amount of time off she was having and made other allegations. That claim was sent to the European Court of Justice to determine whether or not the Equal Treatment Directive (2000/78/EC) was to be read as giving wider protection than just to disabled people themselves.

In its interpretation of the Directive, the ECJ held that the principles of equal treatment does not apply to particular types of people but rather to particular grounds of discrimination. Therefore it is not limited in scope to people who themselves have a disability. The court applied a purposive approach to the Directive because it felt that combating discrimination would be undermined if a person in the individual claimant’s position could not claim direct discrimination. As the court commented: “The fact remains that it is the disability which is… the ground for the less favourable treatment.”

The court commented that this is also true of harassment provisions where protection is not limited to those people who are ­themselves in the protected category. As already mentioned, a person of either sex can be harassed in respect of sex-based treatment even if it is not directed at their own sex and so on.

The case returned to the tribunal for determination and the Tribunal has now read words into the Disability Discrimination Act so as to read references to a disabled person in ss 3A (5), 3B and 4 as if they included the words “or a person associated with a disabled person”. The substantive claim will now go forward (or be settled) on the basis that the claimant does have locus to complain. No doubt there will now be cases to determine what ‘associated‘ means in this context.

The high-profile nature of this decision, arguably bringing the disability discrimination regime into line with most of the other strands, will undoubtedly have an impact on the way in which these issues are approached in other cases.

Harrassment on grounds of religious belief

In Saini v All Saints Haque Centre (EAT/0227/08) the EAT expressly referred to the Attridge Law decision in finding for a claimant who claimed he had been harassed on grounds of another person’s religion – although coincidentally and confusingly, it was also his own. In that case colleagues in the advice centre had clearly fallen out. .

The fallout appeared to be between people of the Hindu faith and people of the Ravidass faith. One of the (coincidentally) Hindu staff resigned, claiming constructive dismissal and religious discrimination on account of the fact that his new Ravidass managers had pressured him into providing incriminating information on a fellow Hindu.

The Tribunal found that this conduct towards the complainant resulted from their desire to dismiss the manager on the grounds of the manager’s Hindu religion. Therefore the question was whether harassment on grounds of religion or belief (Reg. 5) covered conduct on the grounds of another person’s religion or belief.

The EAT concluded that it did and specifically drew support from the Attridge Law decision in so finding. In the EAT’s view a complainant who suffered unwanted and/or offensive conduct because of the employer’s intention to discriminate against another person on grounds of that person’s religion, themselves suffered harassment under the religious discrimination regulations.

These intriguing decisions open the way to a whole line of cases where individuals can complain that they have been subjected to conduct which is detrimental to them on grounds of someone else’s protected status. The ambit could be extremely wide.

Duty to make adjustments

Staying on the theme of disability discrimination, the EAT has recently considered the circumstances in which the duty to make adjustments arise for an employer. In Eastern & Costal Kent Primary Care Trust v Grey (EAT/0454/08) the employer appealed against a decision that it had discriminated against the candidate by failing to make adjustments for her dyslexia in circumstances in which she had done badly in both the presentations and the written exercises..

Although G had noted that she suffered from dyslexia on her application form, she did not indicate that she required any special arrangements to be made at her interview. Further, at the interview the candidates, including G were asked if they required any special arrangements, however, G did not make any requests.

Section 4A(3) of the Disability Discrimination Act 1995 provides that an employer is exempt from the duty to make reasonable adjustments if the employer does not know, and could not reasonably be expected to know, in the case of an applicant, that they are disabled, or that the person with the disability is likely to be put at a substantial disadvantage. Thus, the employer is exempt from the duty to make reasonable adjustments where they:

a) did not know that the disabled person has a disability;

b) do not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;

c) could not reasonably be expected to know that the disabled person had a disability; and

d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not ­disabled.

The ET’s reasoning had made it unclear whether they had understood or correctly applied the test, which is cumulative. Indeed the ET seemed to have proceeded on the basis that once a condition had been revealed in the form, then the employer “would have been aware” of the disability, apparently ignoring both the actual evidence and the second limb of the test.

Essentially, the ET failed to consider first whether the PCT could not reasonably be expected to know that the claimant was likely to be put at a substantial disadvantage or secondly, that the PCT did know that G was likely to be affected so as to place her at a disadvantage in the interview.

In light of this finding, the case was remitted back to the ET to consider whether the PCT did not know and could not reasonably be expected to know that, as a result of her disability, namely her dyslexia, that G was likely to be at a substantial disadvantage in comparison with persons who were not disabled at the interview.

Accruing annual leave while long-term sick

Finally, the ECJ has ruled in the latest incarnation of the Stringer case (Stringer and Others v HMRC and Schultz - Huff v Deutscherentenversicherung Bund (ECJ Case C-350/06 see Solicitors Journal, 27 January 2009) that workers accrue and carry over annual leave even while on long-term sick leave under the Working Time Directive. The point at issue was the extent to which the employee can accrue a period of paid leave under the Working Time Regulations (deriving from the Working Time Directive) when s/he is already on some other type of leave, in this case sick leave. The decision is not pellucid but a couple of points seem clear and they do not make happy reading for employers, or possibly, employees who may as a result face earlier dismissal from employment.

The ECJ ruled that national laws can provide that a worker either is or is not allowed to take paid annual leave during sick leave. But, it also ruled that national law must in any event allow workers to accrue annual leave even if they have been on sick leave for the entirety of a holiday year.

Member states can lay down conditions for using paid annual leave. They can also set conditions for losing that right at the end of a leave year or carry-over period. However, workers must have had a chance to exercise their right to paid annual leave, which would not be possible if the employee was on sick leave for the entirety of the year. The worker must be allowed to carry over such entitlement, or receive payment in lieu on termination of employment.

The ECJ reiterated previous case law in saying that a period of leave guaranteed by Community Law cannot affect the right to take another period of leave guaranteed by that law, but distinguished this case on the grounds that sick leave (unlike maternity leave for example) is not governed by community law.

The decision raises at least as many questions as it answers and it is to be hoped that on return to the House of Lords, some of these are clarified, even if obiter. Thus, the relationship between the right of the member state to legislate for non-community law leave (sick leave) and community law leave (holiday) is not clear.

Similarly it is by no means clear how long the carry over applies. Does it go into a second year of sick leave, or a third? What happens to an employee who is on long-term disability “leave“ and is in receipt of insurance-based benefits? Do they now benefit from an additional 24 (soon to be 28) days’ pay? Could the employer include set-off provisions in the employment contract, such that some of what would otherwise be sick leave is taken as holiday? If so, how could this affect employees whose right to contractual sick pay has expired – could this inadvertently refresh their entitlement under some contractual policies? We will be awaiting further clarification with interest.