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27.251.26.4/casestudies/Sem4_2013/HROB115.htm
IBS Campuses
HROB/115
Flexibility in the Workplace & Discrimination by Association: Sharon Coleman Vs Attridge Law
This case was written by Debapratim Purkayastha, IBS Center for Management Research. It was compiled from published sources, and is intended to be used as a basis for class discussion rather than to illustrate either effective or ineffective handling of a management situation.
2008, IBS Center for Management Research. All rights reserved. To order copies, call +91-08417-236667/68 or write to IBS Center for Management Research (ICMR), IFHE Campus, Donthanapally, Sankarapally Road, Hyderabad 501 504, Andhra Pradesh, India or email: info@icmrindia.org
www.icmrindia.org
HROB/115
Flexibility in the Workplace & Discrimination by Association: Sharon Coleman Vs Attridge Law
[A]ll employers in the public and private sector would do well to revisit their policies and procedures in light of this decision. Particular attention should be given to ensuring that equal opportunity, anti-harassment, anti-discrimination, and absence policies comply, and that they have a clear understanding of who may be affected by this change in the law Employers should also consider how their flexible working policies will be [1] implemented. - Ed Williams, a barrister specialising in employment and discrimination law with the London chambers, Cloisters, in 2008 [2] It just didnt seem fair that colleagues who didnt have disabled children were given much more flexibility. - Sharon Coleman, Carers UK, regarding her stint at Attridge Law firm, the company she sued for allegedly discriminating against her because she had a disabled child, in 2008 Im a father of a badly disabled son and I find the accusations particularly offensive. Its a test case and I can understand that it is an important policy decision. I actually have quite a lot of sympathy with the policy (issue), but I do not have any sympathy with her allegations. If they were going
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[3] to choose a test case, I wish they had chosen one with more substance. - Stephen Law, Attridge Law Firm, one of the defendents in the lawsuit, in 2007
INTRODUCTION
[4] In July 2008, Sharon Coleman (Coleman), a former legal secretary, won a legal battle in the European Court of Justice (ECJ) against her employers Attridge Law (now called EBR Attridge LLP), whom she accused of discriminating against her at the workplace and of having forced her into accepting voluntary redundancy. At the time of accepting voluntary redundancy, Coleman had a 4-year-old son who was disabled. He was born with a medical condition that led to his having difficulties in breathing and hearing. According to Coleman, she was treated differently at work from other employees, who had normal children. She approached the court with her case in August 2005, claiming constructive dismissal and disability discrimination by virtue of being discriminated against because of association with a disabled person, or in other words, discrimination by association. Her case was initially heard at a UK Employment Tribunal, which referred the case to the ECJ to see if current European Union (EU) legislation could apply to people caring for a disabled person. On July 17, 2008, the European Court ruled in her favor. The case was then to return to the UK and be heard by the Employment Tribunal that had originally referred it to the ECJ. The Tribunal was expected to then attempt to interpret the Disability Discrimination Act 1995 (DDA) to cover discrimination by association. The Act would have to be amended if the Tribunal was unable to use the laws prevailing at the time. The decision was expected to pave the way for other carers to make similar claims and experts warned that it would lead to many more such claims being made. Louise Donaldson, an employment lawyer with law firm Pinsent Masons LLP, said, A carer of a disabled person may have a much stronger weapon in terms of being able to bring a disability discrimination claim if their request to work flexibly is refused. Although flexible working is an obvious area where associative discrimination comes into play, any less favourable treatment which is shown to be by reason of a persons [5] association with a disabled person will give grounds for a disability discrimination claim. Experts said the ruling would also create the potential for the law to apply to other kinds of discriminations by association such as age discrimination. They felt that this decision could have huge implications for organizations in general and their human resource (HR) managers in particular. Employers now need to look at their recruitment and other workplace policies to make sure they are not discriminating against staff who have disabled family members or [6] [7] friends, said Brendan Barber, general secretary, Trades Union Congress (TUC).
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was 45 percent less likely to be in work than a partnered man, and more than 70 percent of the recruitment agencies surveyed had been asked by clients to avoid hiring pregnant women or those of childbearing age.[11] There were laws in the UK against discrimination on the ground of disability but the protection did not apply to those who took care of the disabled (Refer to Exhibit II for the UK Law on Disability Discrimination). In the UK, associative discrimination on the ground of sexual orientation, religion, and racial grounds was unlawful.[12] Those associated with people of another race, religion or beliefs, or sexual orientation, were protected through the Race Relations Act 1976, the Employment Equality (Religion or Belief) Regulations 2003, and the Employment Equality (Sexual Orientation) Regulations 2003 respectively but there was no provision for associative discrimination on the grounds of disability.[13] According to British law, employees had the statutory right to apply for flexible working arrangements. According to the Federation of Small Businesses[14] (FSB), 90 percent of such requests were agreed to by employers.[15] However, on certain occasions, employers had been accused of discriminating among employees while providing flexible working arrangements (Refer to Exhibit III for a brief note on flexible working, and Exhibit IV for UK law on Flexible Working).
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the Equality & Human Rights Commission). Attridge Law had throughout denied the allegations. Stephen Law, the other defendant in the case, said that he had probably made the comment regarding Colemans son but added that Coleman was a chronic offender who often arrived late to work. He alleged that she took advantage of the compassion shown to her by her employer. He argued that being a parent of a disabled child himself, he could relate to the problems of carers and the policy implications. However, he maintained that Coleman had been treated favourably and her allegations against the defendents lacked substance.[25]
THE RULING
That the ruling would be in favor of Coleman became somewhat apparent in January 2007, when the Advocate General, Poiares Maduro, said that one way of undermining the dignity and autonomy of people ... is to target not them, but third persons who are closely associated with them A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation.[26] The Advocate Generals statement was splashed across the pages of newspapers in the UK, and Colemans case was considered a landmark one. Though not binding, the Advocate Generals opinion is followed in 80 percent of cases.[27] Later in the year, the judges at the EJC agreed unanimously that Coleman had the right to claim discrimination by association if she had been harassed and branded as lazy for wanting flexibility to look after her child.[28] (Refer to Box I for the EJC ruling) Box I
The EJC Ruling on the S. Coleman v Attridge Law and Steve Law Case
1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, and, in particular, Articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favorably than another employee is, has been, or would be treated in a comparable situation, and it is established that the less favorable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a). 2. Directive 2000/78, and, in particular, Articles 1 and 2(1) and (3) thereof, must be interpreted as meaning that the prohibition of harassment laid down by those provisions is not limited only to people who are themselves disabled. Where it is established that the unwanted conduct amounting to harassment which is suffered by an employee who is not himself disabled is related to the disability of his child, whose care is provided primarily by that employee, such conduct is contrary to the prohibition of harassment laid down by Article 2(3).
Source: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0303:EN:HTML
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or who had any dependents that needed care. Moreover, such flexibility could not be provided in all types of jobs and the law could put undue pressure on the companies, particularly the small businesses, they felt. In addition to this, there was the problem of frivolous claims. Marian Bloodworth, an employment lawyer with Lovells LLP, said, How is an employer expected to know whether an employees relative is disabled for the purposes of the Act? They will be put in a very difficult position as there are real sensitivities, not to mention confidentiality and data protection issues, in asking for medical evidence of disability from someone with whom they have no employment relationship Will employers simply be expected to take an employees word for the fact that their relative is disabled?[42]
An overview of European Law Relevant to Discrimination or Equal Pay Claims in England, Scotland and Wales
European Union (EU) law is part of the domestic law in England, Wales, and Scotland because of the European Communities Act 1972. The effect of this is that UK tribunals and courts must, wherever possible, interpret domestic law in accordance with EU law. Where EU law has direct effect, this would take precedence over domestic law and individuals would be able to rely on EU law where domestic law does not provide a remedy. EU law has direct effect in the following cases: Any individual can rely on A141 (ex A119) Treaty of Rome in equal pay cases Individuals bringing a claim against an emanation of the state (which includes employers in the public sector) can rely on provisions of EU Directives where those provisions are: sufficiently clear and precise; unconditional and unqualified; and not subject to further implementing measures. Recommendations are not binding on UK tribunals and courts, but may be taken into account as an aid to interpretation of domestic law. Article 141 (ex 119) Treaty of Rome (Treaty Establishing the European Community) This provides that men and women should receive equal pay for equal work. Equal Pay Directive (75/117) This provides that all discrimination on the ground of sex in respect of all aspects of pay should be eliminated. Equal Treatment Directive (75/207) This provides that there should be no discrimination on grounds of sex, either directly or indirectly, nor by reference to marital or family status, in access to employment, training, working conditions, promotion or dismissal. Equal Treatment (Amendment) Directive (2002/73) This amends the Equal Treatment Directive, most importantly by adding a definition of sexual harassment and of harassment. The UK is required to implement the changes required by the directive by September 2005. Social Security Directive (79/7) This requires equal treatment of men and women in statutory schemes providing protection against sickness, invalidity, old age, accidents at work, and occupational diseases and unemployment. It does not require equalization of pension ages. Occupational Social Security Directive (86/378) This aims to implement the principle of equal treatment for men and women in occupational social security schemes. Pregnant Workers Directive (92/85) This requires minimum measures to improve the safety and health at work of pregnant women and women who have recently given birth or are breastfeeding, including a right to maternity leave. Working Time Directive (93/104) This provides for minimum health and safety requirements for the organization of working time. It requires minimum periods of daily and weekly rest and annual leave, breaks, and maximum weekly
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working time. It contains provisions relating to night work, shift work, and other patterns of work. Parental Leave Directive (96/34) This provides for all parents of children up to a given age to be defined by Member States, to be given up to 3 months' unpaid parental leave. It also provides for individuals to take unpaid time off when a dependant is ill or injured. Burden of Proof Directive (97/80) This requires any necessary changes in Member States' judicial systems to ensure more effective implementation of the principle of equal treatment. Part-time Workers Directive (98/23) This prohibits discrimination against part-time workers unless justified on objective grounds. It requires part-time workers to receive pay and benefits given to full-timers, on a pro-rata basis. It does not require a right to work part-time. Framework Directive on Fixed Term Work (99/70) This aims to prevent fixed term workers from being less favorably treated than permanent workers unless the difference in treatment is objectively justified and to limit the use of successive fixed term contracts. Framework Directive for Equal Treatment in Employment and Occupation (2000/78) This requires Member States to implement legislation prohibiting discrimination on grounds of sexual orientation and religious discrimination by 2 December 2003 and on grounds of age and disability by 2 December 2006. European Commission Recommendation and Code of Practice on the protection of the dignity of women and men at work (92/131) This contains recommendations to employers, trade unions, and employees on avoiding and dealing with sexual harassment. European Council Recommendation on Childcare (92/24) This recommends initiatives so that the workplace takes into account the needs of all working parents with responsibility for the care of children.
Source: http://83.137.212.42/sitearchive/eoc/Default87ac.html?page=15500
Exhibit II
Exhibit III
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Sabbatical/career break: Employees being allowed to take an extended period of time off, either paid or unpaid. Employers and employees can arrive at any (or a combination) of these arragements but these arrangements should comply with the law on working time. Flexible working requires a new approach to working hours and workplace and could benefit employees, their families, and the employers,according to some experts. Many businesses are introducing flexible working arrangements due to the changing needs of the customers and employees. Flexible working helps the employees achieve a better fit between other commitments and activities in their work, and to make better use of their free time. This could be particularly helpful for employees caring for children or other dependants. Flexible working could help even those who do not have such responsibilities manage their work-life balance better and also make them feel more in control of their workloads. Such an arrangement could help them avoid physical and mental stress and to prevent sickness and burn out. The customers of companies with flexible working arrangements are benefited as the company is able to offer longer opening times, more experienced staff, and better overall service. In addition to this, the company can achieve greater cost-effectiveness and efficiency. For instance, the company can save on overheads when employees work from home or there could be less downtime for machinery when 24-hour shifts are worked. It helps the company in attracting and retaining talent, and reduces recruitment costs. It can lead to retention of higher skilled and experienced employees who might have left if flexible working arrangements were not offered. Moreover, employees are more satisfied with their jobs and their morale is high. Studies have shown a link between job satisfaction and productivity. Some experts also say that work-life balance has a positive impact on employee relations, motivation, and commitment. This in turn allows the company to increase its competitiveness and also negotiate the changes in the environment better. Employers trying to introduce flexible working for the first time need to plan, implement, and monitor its introduction throughout the business. They need to inform and discuss the issue with their employees and also to consult employees before introducing the policy. Besides, they need to consider the likely effects of the policy on business and other systems and procedures. For instance, existing job contracts may need to change and new ways of recording working patterns and monitoring absence has to be introduced.
Adapted from Benefits of Flexible Working, www.businesslink.gov.uk; and other sources.
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Exhibit IV
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19. Landmark Case Could Benefit Carers, www.rte.ie, January 31, 2008. 20. Win for Disability Rights Woman, www.news.bbc.co.uk, January 31, 2008. 21. Sue Littlemore, Hope for Carers over Europe Judgement, www.news.bbc.co.uk, January 31, 2008. 22. Mothers Face Job Discrimination, www.bbc.co.uk, February 28, 2007. 23. Gaby Hinsliff, Mothers Battle for Carers Rights, www.guardian.co.uk, January 21, 2007. 24. Transcript of Proceedings, www.employmentappeals.gov.uk, November 9, 2006. 25. William Miller, Workplace Discrimination in the European Union, www.business-ethics.org, 1999. 26. Benefits of Flexible Working, www.businesslink.gov.uk 27. Hidden Barriers, www.workplacefairness.org/sc/discrimination.php 28. www.equalityhumanrights.com/en/yourrights/equalityanddiscrimination/Disability/Pages/Whatthelawsays.aspx 29. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0303:EN:HTML 30. http://83.137.212.42/sitearchive/eoc/Default87ac.html?page=15500
Ed Williams, Indirect Disability Discrimination Ruling Has Major Implications for HR, www.personneltoday.com, July 25, 2008. Sharon Coleman Tells Us Her Story of Taking Her Battle to the European Court, www.carersuk.org, July 22, 2008. Gaby Hinsliff, Mothers Battle for Carers Rights, www.guardian.co.uk, January 21, 2007. The Court of Justice of the European Communities (usually called the European Court of Justice), is the highest court in the European Union (EU). It has the last say on matters of EU law in order to ensure equal application across the various European Union member states. The body was established in 1952 and is based in Luxembourg City. Disability Discrimination Act Can Extend to Carers, Rules ECJ, www.out-law.com, July 24, 2008. Having a Disabled Child Led to Discrimination, www.abeceder.co.uk, July 21, 2008. Trades Union Congress is the national trade union center in the UK, representing the vast majority of organized workers. Hidden Barriers, www.workplacefairness.org/sc/discrimination.php William Miller, Workplace Discrimination in the European Union, www.business-ethics.org, 1999.
[10] EU Proposes Protection from Discrimination beyond the Workplace, http://europa.eu, July 2, 2008. [11] Mothers Face Job Discrimination, www.bbc.co.uk, February 28, 2007. [12] Ed Williams, Indirect Disability Discrimination Ruling Has Major Implications for HR, www.personneltoday.com, July 25, 2008. [13] Discrimination by Association, www.timeshighereducation.co.uk, May 1, 2008. [14] The Federation Small Businesses (FSB) is the leading business organisation representing small and medium businesses in the UK. [15] Carers Case May Sour Relations, www.news.bbc.co.uk, January 31, 2008. [16] Sharon Coleman Tells Us Her Story of Taking Her Battle to the European Court, www.carersuk.org, July 22, 2008. [17] Win for Disability Rights Woman, www.news.bbc.co.uk, January 31, 2008. [18] John Carvel, Carers Court Victory on Flexible Working Rights, www.guardian.co.uk, February 1, 2008. [19] Sharon Coleman Tells Us Her Story of Taking Her Battle to the European Court, www.carersuk.org, July 22, 2008. [20] Sharon Coleman Tells Us Her Story of Taking Her Battle to the European Court, www.carersuk.org, July 22, 2008. [21] Gaby Hinsliff, Mothers Battle for Carers Rights, The Observer, January 21, 2007. [22] Coleman v Attridge Law, www.stammeringlaw.org.uk, July 2008. [23] Transcript of Proceedings, www.employmentappeals.gov.uk, November 9, 2006. [24] The Disability Rights Commission (DRC) was an independent body set up by the British Parliament to end discrimination against disabled people. In October 2007, it was replaced by a new Commission for Equality and Human Rights with powers across all equality law (race, sex, disability, religion and belief, sexual orientation, and age) by the passing of the Equality Act 2006.
[25] Gaby Hinsliff, Mothers Battle for Carers Rights, The Observer, January 21, 2007. [26] Martin Wainwright, Carer Brings Hope to Millions with Landmark Win on Employment Rights, www.guardian.co.uk, July 18, 2008. [27] Landmark Case Could Benefit Carers, www.rte.ie, January 31, 2008. [28] Martin Wainwright, Carer Brings Hope to Millions with Landmark Win on Employment Rights, www.guardian.co.uk, July 18, 2008. [29] Carers for Disabled People Could be Protected by Discrimination Law, www.out-law.com, February 4, 2008. [30] Julia Horton, This Will Mean So Much to So Many People, www.theherald.co.uk, July 18, 2008. [31] Julia Horton, This Will Mean So Much to So Many People, www.theherald.co.uk, July 18, 2008. [32] Carers Scotland is the leading campaigning, policy, and information organization for carers in Scotland.
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[33] Julia Horton, This Will Mean So Much to So Many People, www.theherald.co.uk, July 18, 2008. [34] Stephanie Bodoni and Caroline Byrne, Parent of Disabled Child Can Sue Employers for Bias (Update1), www.bloomberg.com, July 17, 2008. [35] Sue Littlemore, Hope for Carers over Europe Judgement, www.news.bbc.co.uk, January 31, 2008. [36] Carers for Disabled People Could be Protected by Discrimination Law, www.out-law.com, February 4, 2008. [37] Ed Williams, Indirect Disability Discrimination Ruling Has Major Implications for HR, www.personneltoday.com, July 25, 2008. [38] Stephanie Bodoni and Caroline Byrne, Parent of Disabled Child Can Sue Employers for Bias (Update1), www.bloomberg.com, July 17, 2008. [39] Coleman v Attridge Law and Steve Law, www.personneltoday.com, June 15, 2008. [40] France Gibbs, Relatives of Disabled Win Groundbreaking Victory after Sharon Coleman Discrimination Case, http://business.timesonline.co.uk, July 18, 2008. [41] Carers Case May Sour Relations, www.news.bbc.co.uk, January 31, 2008. [42] France Gibbs, Relatives of Disabled Win Groundbreaking Victory after Sharon Coleman Discrimination Case, http://business.timesonline.co.uk, July 18, 2008. [43] Employers Warned as Landmark Ruling Extends Rights to Carers, www.farminguk.com, July 21, 2008. [44] Michael Herman, Analysis: Good, But Not Great for Carers, http://business.timesonline.co.uk, July 17, 2008. [45] Carers Rights Need to be Protected, www.personneltoday.com, February 11, 2008.
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