Court of Justice strengthens protection for employees who are parents of a child with disabilities
The EU Court of Justice has consolidated its case law on disability-related discrimination, where the disability affects an employee’s child. In a 2008 judgment, the Court of Justice ruled on the issue of direct discrimination ‘by association’: Sharon Coleman, an employee who was recruited by a firm of solicitors in 2001 to work as a legal secretary, gave birth in 2002 to a son, whose disability meant that he needed specialised care, which she provided as his primary carer.
After a period of three years characterised by acts of harassment and vexatious measures (e.g. the employer refused to grant her the same flexibility in her working hours and the same working conditions as her colleagues), she accepted voluntary redundancy, but lodged an appeal, alleging that she had suffered unfair constructive dismissal and had been treated less favourably than other employees because she was the primary carer of a disabled child. At that time, the Court of Justice held that Directive 2000/78 cannot be interpreted “strictly, that is, as prohibiting only direct discrimination on grounds of disability and relating exclusively to disabled people”.
The Court stated that “the directive […] applies not to a particular category of person” but by reference to the discrimination grounds it relates to, given that an interpretation of the directive “limiting its application only to people who are themselves disabled is liable to deprive that directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee”. The Court thus recognised the concept of direct discrimination ‘by association’, preventing the employer from seeking to justify their actions or propose ‘reasonable accommodation’.
In a further judgment pronounced on 11 September, concerning a female employee who was responsible for monitoring and supervising an underground station, this time the Court accepts the concept of ‘indirect’ discrimination ‘by association’. The case concerns an employee who asked her employer to appoint her, permanently, to a position with fixed working hours, even if it was one requiring a lower level of qualification, to enable her to care for her minor child, who has extensive and comprehensive needs arising from disability and must follow a care programme at a fixed time in the afternoon.
The employer refused her requests but did provide her with some accommodation in respect of her working conditions on a provisional basis, as compared to other station operators, who are subject to alternating and rotating shifts. The employee alleges that she was the victim of discrimination resulting from the application of a rule governing working hours at the company. Despite being apparently neutral, this rule did not take account of her special needs (hence the use of the term ‘indirect’ discrimination).
In contrast to a situation involving direct discrimination, in the event of indirect discrimination, the employer is entitled to demonstrate a legitimate aim in order to claim exemption, or make ‘reasonable accommodation’. Relying on the United Nations Convention on the Rights of Persons with Disabilities, concluded on 13 December 2006, the Court holds that the employee “must be able to provide, to his or her child who has a disability, the assistance that that child requires, which implies an obligation, on the employer, to adapt the working conditions of that employee”.
A national court to which a case of this nature is referred must however check “that that accommodation does not impose an unreasonable burden on that employer” – which is questionable in light of the Court’s case law on reasonable accommodation.
