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Discrimination by association

January 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

26-08-2008 - A legal secretary worked at an English law firm. She was the mother of a disabled child and the primary carer for him. In 2005 she resigned. Afterwards she brought a claim of disability discrimination and constructive dismissal against her former employer on the grounds that she had been treated less well than her colleagues and had been forced to resign because she was the primary carer for her son.

 

ECJ ruling

Yvonne Frederiksen
yf@norrbomvinding.com

Discrimination and harassment of employee due to child's disability is not allowed

A legal secretary worked at an English law firm. She was the mother of a disabled child and the primary carer for him. In 2005 she resigned. Afterwards she brought a claim of disability discrimination and constructive dismissal against her former employer on the grounds that she had been treated less well than her colleagues and had been forced to resign because she was the primary carer for her son.

The Equal Treatment Framework Directive prohibits disability discrimination and/or harassment. The English employment tribunal therefore asked the European Court of Justice (ECJ) if the protection also extended to parents acting as the primary carer for a disabled child.

The ECJ ruled that the prohibition of direct disability discrimination and harassment also protects non-disabled employees with a disabled child. As a result of the principle of the shared burden of proof, the employee must show that there is a presumption of discrimination/harassment - and that the reason for the discrimination/harassment is wholly or partly the fact that the employee is the primary carer for the disabled child. It is then for the employer to disprove the allegation.

It is now for the employment tribunal in England to decide the case based on the decision from the ECJ.

In Norrbom Vinding's view:

  • the prohibition of direct discrimination/harassment laid down in the Danish Anti-Discrimination Act does not only cover disabled employees. Parents of a disabled child are also protected if they are the primary carer for the child.

This information does not constitute legal advice and should not be relied upon as such

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