Ms Coleman worked as a legal secretary for Attridge Law. In 2002, she gave birth to her son who suffers from a disability within the meaning of the Disability Discrimination Act 1995 (DDA) and for which he needs specialist care (for a feature article on the DDA, see “The Disability Discrimination Act 1995: measuring the impact”, www.practicallaw.com/0-206-0011). Ms Coleman left Attridge Law in 2005 and brought claims of constructive dismissal and disability discrimination.

She alleged that, following her return to work from maternity leave, she had been treated less favourably than other employees who had children who were not disabled. This treatment included not allowing her to return to her previous post, threatened disciplinary action for lateness, subjecting her to criticism when she asked to take time off to care for her son and not allowing her to work from home to care for her son when he had had an operation. Ms Coleman also claimed that she had been the subject of harassment under the DDA.

During a prehearing review of the case, London South employment tribunal (the tribunal) ordered that the question of whether discrimination by association is prohibited under the Directive be referred to the ECJ for a preliminary ruling. The ECJ ruled that it is prohibited.

Public sector employees will benefit straightaway from the ECJ’s decision, as directives are directly enforceable against public authorities. However, for private sector employers, including Attridge Law, the immediate impact will depend on whether the UK employment tribunal that will now hear the case can interpret the DDA so as to give effect to the Directive.

The current wording of the DDA does not expressly prevent associative discrimination. This can be distinguished from the position under other strands of discrimination legislation, including that relating to race, sexual orientation and religion and belief. These strands have already been interpreted under UK case law as extending to cover associative discrimination, as the regulations refer to discrimination on racial grounds and “on the grounds of” a person’s sexual orientation and religion or belief.

For example, in Showboat Entertainment Centre Ltd v Owens, a white employee was dismissed for refusing to follow instructions to exclude young black people from an amusement arcade ([1984] IRLR). The Employment Appeal Tribunal (EAT) held that the employee was protected as “racial grounds” covers any reason or action based on race.

By contrast, the wording in the UK legislation on disability and age refers specifically to the disability or age of the person bringing the relevant claim.

During the EAT’s consideration of the appeal brought by Attridge Law, Attridge Law’s representatives argued that it was clear when the government interpreted the Directive that the DDA was not intended to protect associative disability discrimination. Also, no steps were taken to include associative discrimination when the DDA was recently amended. Conversely, Ms Coleman’s representatives highlighted the obligation of a domestic court, where possible, to interpret national law in order to achieve the result sought by a directive (Pfeiffer v Deutsches Rotes Kreuz Kreizerband Waldshut EV [2005] IRLR 137).

Both the tribunal and the EAT indicated that the DDA is capable of interpretation in line with the Directive and suggested interpolating words into the DDA to achieve this. This would be consistent with the approach taken in Litster v Forth Dry Dock Engineering Ltd, in which the House of Lords stated that domestic legislation should be interpreted in line with the underlying directive even if it results in a departure from the literal interpretation of the legislation ([1989] IRLR 161). The House of Lords then added wording to the Transfer of Undertakings (Protection of Employment) Regulations 1981 to bring them in line with the Acquired Rights Directive (77/187/EC).

Neither the tribunal nor the EAT have made any finding of fact in this case, and the referral to the ECJ was made on assumed facts. It will now be for Ms Coleman to return her claim to the UK for a decision by the employment tribunal. If the tribunal finds that the DDA can be interpreted in line with the Directive, UK private sector employers will need to ensure that they take necessary steps immediately to prevent associative discrimination in the workplace (see box “Practical tips”).

If the tribunal cannot interpret the DDA to give effect to the Directive, Ms Coleman’s only remaining right of recourse may lie against the government in accordance with the principle established in Andrea Francovich and Others v Italian Republic, which allows the enforcement of state liability for failure to implement EC law (C-6/90 and 9/90).

However, regardless of whether Ms Coleman pursues such a course of action, the government will be under an obligation to amend the DDA to ensure that it is brought in line with the provisions on associative discrimination in the Directive.

In the event that employees have to wait until Parliament amends the DDA to enforce such a right, this will give employers some additional time to take on board the practical and legal implications of this decision, but it will not detract from the eventual outcome that associative discrimination will be unlawful in the UK.