discrimination in dealings with nursery staff
The issue of discrimination in dealings with staff is a topic
that is of great concern to all employers, not least because the
penalties for getting it wrong are potentially significant. There
has recently been a decision concerning an employee who alleged she
was discriminated against on the grounds of her son's
disability.
The employee alleged that when she returned to work after
maternity leave and sought to take time off to care for her
disabled son, who suffered from acute respiratory difficulties, she
was treated less favourably than other employees who took time off
to care for their children. She claimed she was accused of being
'lazy', of trying to manipulate her working conditions and that her
employer used abusive and insulting language about her and her son.
She also claimed that she was subjected to disciplinary action and
that her employer failed to deal properly with a grievance she
raised about the treatment. She brought a claim for constructive
dismissal and disability discrimination. Under the Disability
Discrimination Act 1995 (DDA) there is discrimination 'against a
disabled person' if they are treated less favourably for a reason
that relates to their disability.
Ostensibly, therefore, the employee could not make a claim, as
she was not a disabled person. However, the EC Equal Treatment
Directive (the directive), which imposes requirements on UK
antidiscrimination law, uses different wording. The case was
referred to the European Court of Justice (ECJ) to determine
whether the employee could potentially succeed under European law,
even though it was not she who was disabled. The ECJ agreed that
the directive does prohibit discrimination by association with a
disabled person and the UK Employment Appeal Tribunal has decided
that the UK's DDA could be read to give effect to this
interpretation. This has become known as 'associative
discrimination'.
The UK courts are obliged to interpret UK legislation in
accordance with EU law so as far as is possible, and providing the
UK legislation does not contain 'an express and unambiguous
indication to the contrary'. The UK Employment Appeal Tribunal
therefore added words into the DDA to refer to less favourable
treatment 'by reason of the disability of another person' and
harassment 'for a reason which relates to the disability of another
person'. This extension of the DDA to include associative
discrimination now applies to all employers. Unless there is a
further appeal, it is binding UK law.
Other strands of UK antidiscrimination law, for example
discrimination on grounds of age, sexual orientation, and religion
or belief, come from the same EC directive. The case therefore
opens the way for arguments that those associated with relatives of
a particular age, for example, are protected in a similar way.
This article was published in Nursery Management Today.
