The industry was expecting the Tribunal to declare that the DDA was incompatible with the Directive, thereby necessitating an amendment to the DDA. This would have given employers time to adjust to any amendment to the DDA. Unfortunately, the Employment Tribunal decided that the DDA can and should be read so as to protect persons associated with a disabled person from discrimination or harassment.
For those unaware of the facts of this case, C is not disabled herself, but cares for her disabled son. When she sought to take time off to care for him, her employer called her ‘lazy’ and accused her of attempting to manipulate her working conditions. C brought claims under the DDA, arguing that she had suffered discrimination by association with her son’s disability.
The tribunal was satisfied that the Disability Discrimination Act 1995 (Amendment) Regulations 2003, (which amended the definition of discrimination and harassment in the DDA), were intended to put the Directive into full effect. The tribunal therefore decided to read references to a disabled person in Ss.3A(5), 3B and 4 of the DDA as if they included the words or a person associated with a disabled person.
Editor’s Note. Although this is only a Tribunal decision, employers will be wise to review their practices and procedures to ensure that the protection given to their disabled employees is extended to associated persons, the most common group of which are carers. The legislation does not require employers to maintain data of associated persons in their organization, but where the employer knew or should have known that the employee in question is a person associated with a disabled person, DDA must be considered.