Carers Rights Win
posted: 01/12/2008
The millions of people trying to combine work with caring for ill, disabled or elderly partners and relatives can now claim against any employer who discriminates.
Employers who refuse to offer flexible working to carers (who might be a partner or relative), can now expect to pay compensation following a ruling by the Employment Tribunal.
This tribunal decision partly deals with what is known as the problem of "associative disability discrimination". People who do not have a disability themselves can face disability discrimination because of their link with someone who does have a disability. In this case a carer of a disabled son was discriminated against.
What's the HIV connection?
Partners and carers of people living with HIV can be especially vulnerable to discrimination by association because of the levels of stigma and discrimination against people with HIV. People have been sacked simply because their partner has HIV.
Government still blocking disability rights
A campaign which you can help is underway to make sure the Equalities Bill deals with this problem fully. The Equalities Bill will be introduced in this week's Queen's Speech to Parliament. However the government has consistently opposed the extension of these rights to partners and carers, which is why the campaign is needed. And the campaign is not just about carers' / partners' rights, it is about the rights of the people living with HIV to whom they are linked. If the carer can't have time off, the person with HIV suffers unattended, or their household income drops because the carer has to ask for unpaid time off, or quit work. Quitting may lead to a benefit penalty of no income for weeks.
Despite its previous support for protecting the disabled from discrimination, the government so far opposed this case, including at the Euopean Court, a position described as "completely ridiculous" by the complainant's lawyer, Lucy McLynn. "It has taken someone with Sharon's determination to take the case to Luxembourg to establish something the government should have done five years ago." The government has failed to properly implement the European directive that Britain signed up to.
Forced to quit to care for son
Sharon Coleman, a legal secretary who was forced to resign because she wanted more time to care for her disabled son, was told by the Tribunal that she would be able to claim before the English courts that she suffered "discrimination by association".
She worked for Attridge Law in London when she gave birth to Oliver, who is deaf and suffers from serious respiratory problems, including apnoeic attacks in which his breathing involuntarily stops. Earlier this year, she told the European court of justice that treatment she says she received from the firm, such as comments that her child was "always fucking sick" and she was "lazy" when she sought time off to care for him, was covered by disability discrimination law.
Coleman says she received less favourable treatment because of her son's condition, whereas others were allowed time off to care for their non-disabled children.
European Court - disability protection extended to associated people
The European court found that Coleman's case amounted to discrimination by association, paving the way for claims by carers who say they are discriminated against not because of their own disability, but because of their role in caring for another person.
The tribunal's ruling yesterday, which follows on from the European decision, has clarified the law in England and Wales. Anti-discrimination law is not "restricted to disabled people only", the tribunal said, rejecting arguments made by Attridge Law that to allow carers to be protected would distort the law's meaning.
As a result of the ruling, an estimated 2.5 million people in Britain who maintain jobs as well as caring for sick or disabled family members will be entitled to the same treatment as other staff. Several hundred or possibly even thousands of these will be carers of people living with HIV.
"Employers will have to think more carefully about the way they respond to requests for flexible working from carers," said Lucy McLynn, the lawyer who represented Coleman.
The principle established by the European Court should now apply to disability discrimination by association, not just in employment but in all disability rights. This would cover an untested or HIV negative child refused a school place because her/his parent has HIV, for example. However this principle is unlikely to be accepted by the government, which is another reason why we need to campaign for the Bill to fully include associative discrimination.
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