2009 witnessed important developments in employment law  and it is likely that this trend will continue in 2010.  It is essential that employers consider taking legal advice where they are uncertain as to their employees’ rights, particularly in complicated areas such as flexible working and disability discrimination.

A recent case illustrates how complicated this area can be and, ironically, it involved a firm of solicitors.  A secretary, Sharon Coleman, worked for Attridge Law, a small firm of London solicitors.  Miss Coleman had a disabled son and had asked her employers for the opportunity to work fewer hours to care for him.  When her employer refused, she felt aggrieved, particularly as other employees in the firm had been allowed to reduce their hours for other reasons.  Miss Coleman ended her employment and made an application to the Employment Tribunal claiming compensation for unfair dismissal under the Disability Discrimination Act 1995 (the DDA). The DDA expressly protects those who are disabled from less favourable treatment on the grounds of their disability. She alleged that her employer had accused her of using her son’s illness to manipulate her requests for working fewer hours. She also argued before the Tribunal that she was protected by the Act even though she was not personally disabled but was suffering discrimination owing to her disabled son.

The Tribunal decided to refer the matter to the European Court of Justice for guidance because of the overlap in this area of law with a European Directive on “equal treatment”. In its judgement the Court stated that the purpose of the Directive is to combat all forms of discrimination on grounds of disability and that the Directive should be interpreted as protecting those who, although not themselves disabled, nevertheless suffer discrimination or harassment owing to their association with a disabled person.  Although the DDA merely extends protection for those who are themselves defined as disabled, courts and tribunals in England and Wales must now interpret the DDA so that it covers less favourable treatment of workers based on the disability of a child whose care is provided primarily by that worker. 

Employers must therefore be aware that the duties they hold towards disabled staff should also be equally considered where non-disabled staff act as primary carer for a disabled relative such as a child and if such a situation arises it would be prudent for the employer to take legal advice to avoid accusations of disability discrimination.

Simon Thomas is a partner specialising in Employment Law. He is a member of the Employment Law Association and acts for and advises employers and employees on all aspects of employment law including the drafting of employment contracts, agreements and company policies. He advises on TUPE matters, redundancy law and unfair dismissal. He represents clients and regularly appears at courts and employment tribunals.