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A recent ECJ ruling has extended the scope of protection for carers of disabled family members under EU law, holding for the first time that claims can be brought for indirect discrimination by association where a policy or practice disadvantages an employee because of their association with a disabled dependent (unless the employer can show that it is a proportionate means of achieving a legitimate aim). Although not binding on UK courts or tribunals, claimants may argue that tribunals should have regard to the ruling in interpreting the Equality Act.
The case concerned an employee who requested a permanent role with fixed working hours in the morning to enable her to provide the caregiving routine her disabled child needed at a specific time each afternoon. The ECJ ruled that EU discrimination law should be interpreted widely to provide that an employee subject to indirect discrimination because they are a primary caregiver for their disabled child is protected, even though they do not have a disability themselves. Further, the employer is required to make reasonable adjustments for such an employee, as long as this does not place an unreasonable burden on the employer.
Following Brexit, the ruling does not bind UK courts and tribunals, but they may have regard to it where potentially relevant. Currently, the Equality Act 2010 does not permit associative indirect discrimination claims, although it was amended in January 2024 (to reflect earlier ECJ caselaw) to allow 'same disadvantage' indirect discrimination claims. This is where a person without a relevant protected characteristic suffers substantially the same disadvantage as persons with a protected characteristic who are indirectly discriminated against. While this may provide a remedy in some cases, it will not always be possible to show 'substantially the same disadvantage' as a protected group of employees and there is considerable uncertainty as to how tribunals will apply this test. The tribunal in the 2021 case of Follows v Nationwide Building Society held that the Equality Act should be purposively interpreted to allow an indirect associative disability discrimination claim by an employee whose caring responsibilities for her disabled mother meant she couldn't work full time in the office. Other tribunals have disagreed with this approach, but this latest ECJ judgment may well reopen that argument. Of course, caregivers can have other claims in any event, eg for indirect sex discrimination or under the statutory flexible work request regime, and therefore requests for adjusted hours should always be considered carefully. (GL v AB SpA C-38/24)
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