Discrimination by association: a step in the right direction

Abstract

The recent judgment of the European Court of Justice in Case C-303/06 Coleman v. Attridge Law and Steve Law [2008] ECR I-5603 (hereafter Coleman) is set to become one of the most important decisions in European Community equality law for some time. Coleman represents a landmark ruling in the cause of the implementation of the principle of equal treatment in the Member States. The judgment introduces the principle of discrimination by association. It attaches liability to the act of discrimination based on disability. The employer in Coleman was held liable for the discrimination suffered by the employee as carer of a disabled child. This analysis1 attempts to provide an assessment of the ramifications of the judgment in Coleman, for the employer, employee and for the boundaries of the principle of equal treatment under EU law, specifically Directive 2000/78/EC (OJ 2000, L 303/16), the general framework Directive concerned with equal treatment in employment.2

Acknowledgements

Special thanks to Dr Samantha Currie for comments on earlier drafts of this note and to my colleague Jess Guth.

Notes

1. For a recent analysis, see Lisa Waddington (2009) 46 CMLRev 665–681. For analysis pre Coleman of the issues associated with discrimination by association, see Waddington (2007).

2. For an overview of the Framework Employment Directive in the disability context, see Whittle (2002).

3. Under United Kingdom law, on a preliminary hearing on a point of law, the facts are assumed to be those as related by the claimant. ‘In the event that Ms Coleman establishes the facts from which it may be presumed that there has been direct discrimination, the effective application of the principle of equal treatment then requires that the burden of proof should fall on the respondents, who must prove that there has been no breach of that principle’. See 10(1) Directive 2000/78 EC, para. 54.

4. Directive 2000/78/EC (OJ 2000, L 303/16) the general framework Directive concerned with equal treatment in employment. A useful summary of the literature on this directive can be found at Bell et al. (2004).

5. For a review of the situation leading up to the inclusion of Article 13 into the TEU, see Quinn (1999, p. 281).

6. The Advocate General pointed out that in the literature on discrimination that there was ‘no conclusive answer as to whether the prohibition of discrimination by association flows from Article 13 EC and the Directives that were adopted under it (AG, para. 5). However, Schiek, et al. (2007, 169–170) had previously suggested that discrimination by association will probably be treated as falling within the scope of the anti-discrimination Directives.

7. The bill brings together the different strands of equality law into one piece of legislation. It received the third reading in the House of Commons 2 December 2009 and the Report Stage in the House of Lords 2 March 2010. For current progress specifically on the passage of the bill, see http://www.commonsleader.gov.uk/

8. The bill was published by the Government on 27 April 2009. It is expected to receive Royal Assent in spring 2010.

9. People providing unpaid care for relatives and friends save the public purse an estimated £87 billion each year. Work and Pensions Select Committee, Fourth Report of Session 2007–08, ‘Valuing and supporting carers’ (HC 485). There are currently 2.5 million carers in the UK who work; one in five gives up work to care. Imelda Redmond, Chief Executive of campaign group, Carers UK.