Time off to Care for Dependants - “Associative” Disability Discrimination

David Reid
10th Oct 2008

Two recent decisions, one by the European Court and the other by the Employment Appeal Tribunal, have clarified both the extent of protection afforded to carers by the decision of the European Court in the case of Coleman v Attridge and the scope of the right for carers generally to take time off to care for dependants.

Employment law shared maternity leave

Two recent decisions, one by the European Court and the other by the Employment Appeal Tribunal, have clarified both the extent of protection afforded to carers by the decision of the European Court in the case of Coleman v Attridge and the scope of the right for carers generally to take time off to care for dependants.

 

Prior to the case of Coleman v Attridge it was unclear whether an employee could be discriminated against by association in relation to their role of carer of a disabled person because he or she required time off from their employment because of their caring duties.

 

The facts in the Coleman case were that Ms Coleman had a disabled son and she needed to provide him with specialised care. She alleged that she was treated differently by her employer than the parent of a non-disabled child by being refused flexible working (which other employees had been granted), not being allowed to return to the same job she had before going on maternity leave, being subjected to abuse and insulting comments both about her and her child and being told, having been late on a few occasions because of her carer responsibilities, that she would be dismissed if she came to work late again (other employees who were late due to their role in caring for their non-disabled children were similarly threatened). She subsequently accepted “voluntary” redundancy and then claimed constructive dismissal on the basis of her treatment which related to her carer responsibilities.

 

The European Court decided that the law extended protection to Ms Coleman in these circumstances. The basis of their decision was that the aim of disability discrimination legislation was to prevent discrimination related to disability in its widest sense rather than to simply protect a group of people defined as disabled.

 

In the recent decision of the Employment Appeal Tribunal in Royal Bank of Scotland plc v Mrs J K Harrison, the tribunal for the first time considered the extent of protection afforded to carers by the time off to care for dependants provisions in the Employment Rights Act. In this case, RBS attempted to argue that the provisions which allowed an employee to take time off to care for a dependant in “unexpected” circumstances should be restricted to situations where the need to take time off arose “suddenly” and in an “emergency”.

 

The circumstances here were that Mrs Harrison was advised by her childminder on 8 December 2006 that she would not be able to look after her children on 22 December. The Employment Tribunal which heard the case initially found that this development was “unexpected”. Mrs Harrison then tried to find a replacement carer by contacting family members and other childminders and the services she had used in the past. Her husband was unable to provide care as he ran a small business and his sole employee was going to be off on that date.

 

By 12 December Mrs Harrison had contacted all her potential replacement childminders and had been unsuccessful in finding a substitute. She therefore told her employers on 13 December, that she had a difficulty with childminding and asked for Friday, 22 December off. Her employers did not respond until a week later when she was told on 20 December that her post could not be covered on that date and she could not take the day off. Further she was advised that if she did so her absence would be treated as an unauthorised absence. Mrs Harrison stayed at home on 22 December to look after her children and on 2 February was given a verbal warning, to stay on her file for six months, for having done so. She appealed unsuccessfully against the warning.

 

The cases of Coleman and Harrison taken together for the first time, clarify the extent of carers’ rights to take time off in relation to caring for disabled dependants in terms of the definition of “dependant” in the Employment Rights Act.

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