Employment Appeal Tribunal

Peter Clark J for the Employment Appeal Tribunal held that it was wrong to say the Act could not be interpreted in line with the Directive. But he reserved his judgment and decided to refer the question to the European Court of Justice, on what the correct interpretation of Directive

Advocate General's Opinion

In the Advocate General's Opinion, Miguel Poiares Maduro generalised his statements for all the protected categories under the Framework Directive (religion, age, sexuality). He said,

“One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group." (para. 12)

The preparatory argument is built around the driving force behind Article 13 TEC, on which the Directive is based. Then is cited Ronald Dworkin's philosophy on what it means to protect dignity, that it is a fundamental value for everyone, even among those who disagree about how it is realised. He also referred to Joseph Raz, on the idea that autonomy presupposes that individuals have available number of valuable choices, and the law is to be concerned in protecting them.

From the law itself, Maduro relies on the wording of the first Article of the Directive which says it wants to combat discrimination 'on the grounds of' those categories. He characterises the action against Sharon as direct discrimination (para. 20). Comparing typical discrimination to this, he says,

"In the former case, we think that such conduct is wrong and must be prohibited; the latter is exactly the same in every material aspect." (para. 22)

Also, recital 6, emphasises 'the importance of combating every form of discrimination.' (para. 24)

Statistically, 80% of Advocate General's opinions are followed.

European Court of Justice

The ECJ released its judgment on 31 July 2008, and held that Sharon Coleman would succeed in her suit against the law firm. It did not follow from the relevant provisions of Directive 2000/78 that the principle of equal treatment is limited to people who themselves have a disability within the meaning of the Directive:

On the contrary, the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability.

Commenting on the judgment, Lucy McLynn, partner at Bates Wells Braithwaite, said: "It is a great victory for common sense and for legal clarity, as well as for Sharon personally."^[1]

The decision may have a significant impact on people in the UK who are not currently protected by discrimination legislation. 6 million carers exist in the UK currently, and with an ageing population, 9 million are projected by 2037 according to Carers UK.

Further proceedings before the Employment Tribunal

On its return to the Employment Tribunal, the law firm appealed against a preliminary ruling that the Tribunal had jurisdiction to entertain the claim. On that preliminary point, in EBR Attridge Law LLP & Anor v Coleman [2009] UKEAT 0071 09 3010 (30 October 2009) the Employment Appeal Tribunal held that for an employer to treat an able-bodied employee caring for a disabled child less favourably than another employee in a comparable situation was associative discrimination, notwithstanding the specific references in the Disabilit. The case was remitted to the first-instance Tribunal for a full hearing.