Workers in the UK who juggle caring with a job could soon enjoy a major extension to their rights after a case brought before the European Court of Human Rights this summer ruled in favour of legal secretary Sharon Coleman, mother (and carer) to a disabled son.
Until the July ruling, English disability discrimination law protected disabled individuals only. The European Court of Justice has now accepted Coleman's argument that protection should also extend to individuals who are not themselves disabled but who are treated less favourably because of their 'association' with a disabled person.
The case has its origins in 2002, when Coleman, an employee of law firm Attridge Law, gave birth to her son, who was severely disabled, and required a significant level of care straight away. Coleman alleged she was subjected to abusive comments and denied access to the same flexible working options given to parents of non-disabled children. Although she accepted voluntary redundancy in 2005, Coleman issued a claim for disability discrimination, alleging she had been forced out of her job and treated less favourably than other employees because she was the primary carer of a disabled child.
The court's decision is not only important because it validates the concept of 'associative' discrimination, but it is also likely to extend to age discrimination, thereby assisting carers of the young or elderly as well as the disabled.
It also represents a significant extension of existing English anti-discrimination law. Now, employees who can show they have been treated unfairly because of the disability (or age) of a person for whom they care will have a freestanding claim for 'associative' discrimination. These claims can, if proven, result in significant compensation for financial losses and injury to feelings and may generate bad publicity for employers.
Currently there are three statutory rights available to employees balancing jobs with caring responsibilities. The first is the right to unpaid 'emergency leave', allowing employees to take reasonable time off to make long-term care arrangements or to deal with unexpected disruption and care arrangements for a dependant. The second is a right to up to 13 weeks' unpaid leave to care for a child under six (or up to 18 weeks' unpaid leave to care for a disabled child under 18); and the third is a right for staff caring for a child/adult dependant to request flexible working or change in their hours, times or place of work.
Previously, the remedies available to employees who complained that these statutory rights had been breached were limited - usually no more than a few weeks' pay. In many cases, they attempted to bring such complaints under the more lucrative umbrella of sex discrimination, but that can be difficult to prove. Now disgruntled carers will be able to bring a specific claim of 'associative' discrimination.
The message for employers is clearer than ever. The guiding principle is that all carers should be treated equally, and be seen to be treated equally, regardless of whether the person for whom they care is young or old, disabled or non-disabled. Employers will particularly need to watch out for occasions where managers postpone parental leave for an employee with a disabled child but have not done so in the past for employees with non-disabled children. Other issues could arise when bosses grant a request from an employee who wishes to work part-time to allow them to look after a sick dependant, but insists on a trial period although it has not done so for an employee returning part-time from maternity leave; or allows an employee to take time off to accompany their child to a medical appointment but refuses a similar request by an employee who cares for an elderly relative.
Any organisation that treats a request from a carer differently from other members of staff should ensure its decision-making is transparent and backed by objective business reasons.
- Adopt a consistent procedure for dealing with all requests for time off from carers (remembering that flexible working requests are subject to a statutory procedure)
- If you decide to refuse a request, ensure your decision is based on sound and objective business reasons backed up by a paper trail of supporting evidence, including, for example, notes of meetings or email exchanges with relevant managers confirming the rationale for the decision
- Communicate your decision and the reasons for it to the employee clearly in writing
- Review and update your existing equal opportunities and harassment policies expressly to include reference to 'associative' discrimination and provide appropriate training to managers and HR on dealing with requests from carers.