18th July 2008


 Issue No.  2008/15




The European Court of Justice (ECJ) has this week confirmed that the Equal Treatment Framework Directive is intended to prohibit associative discrimination in the context of direct discrimination and harassment.

An Employee alleged she was directly discriminated against and harassed by her former employers on grounds of the disability of her son. According to the ECJ's decision, the Directive is intended to prohibit direct discrimination or harassment on grounds of disability, even where the person making the complaint is not disabled themselves.
This means that the Disability Discrimination Act will have to be amended to permit claims to be brought for direct discrimination and harassment on the grounds of disability by non-disabled claimants.
As the Directive applies to age, sexual orientation, religion and belief, as well as disability, direct discrimination by association in those other contexts must also be considered prohibited and domestic legislation will need to be reviewed and amended accordingly.
The immediate effect is that employees with claims against public sector organisations can rely directly on the directive.  If you are an employer in the private sector your employees will need to argue that tribunals and courts should make their decisions based on the Directive and this ECJ decision, rather than domestic legislation as currently framed.
Employers who have good policies in place should have little to fear from this decision.  However a good policy on its own is not enough.  This case illustrates why employers must not directly discriminate against or harass an employee where the employee is a primary carer for a disabled person.
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