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Advocate-General's opinions on discrimination by association and accrual of holiday

18 February 2008

Two recent Advocate-General opinions handed down in the European Court of Justice (ECJ) are likely to affect employers practices if the ECJ upholds them. Although the opinion of an Advocate-General is not binding on the ECJ, it is followed in the majority of cases.

Discrimination "by association"

It is estimated that six million people in Britain provide unpaid care for disabled people. Many of these have full-time or part-time jobs elsewhere. In the Advocate-Generals view, employees who provide such care should be protected from discrimination in their employment. If the ECJ agrees, then employers ought to:

  • Amend their equal opportunities policies to cover discrimination on grounds that a person is a carer of a disabled person
  • Treat requests for flexible working from employees wishing to care for disabled relatives with the same care as is required for such requests from new mothers. (Note that, with the changes last April to the regulations on flexible working requests, employers must in any event follow the prescribed procedure when presented with a request for flexible working to look after a dependent adult)

Discrimination by association against an employee on grounds of some other persons race, sexual orientation or religion is prohibited in the UK. The same does not appear to be true of discrimination on grounds of sex or disability, because of the wording of UK legislation. However, the recently published opinion of the Advocate-General may change that, at least in relation to disability.

Coleman v Attridge Law

The Advocate-General concluded that it is unlawful for an employer to treat an employee less favourably because the individual has an association with a disabled person.

Sharon Coleman, whose son suffers from congenital breathing difficulties and requires special care, claimed she was forced to resign from her position as a legal secretary with Attridge Law, a law firm, as she was refused the same flexible working hours as other staff and was singled out by her employer for discriminatory treatment because of her disabled son. Ms Coleman said she was described as "lazy" when she asked for time off to look after her child, and that she was refused permission to work from home, when her child needed an operation. This treatment, said the Advocate-General, could amount to unlawful discrimination contrary to the general framework directive for equal treatment in employment.

If the ECJ agrees, employers are likely to face increased absences from employees who care for disabled relatives and claims that a refusal to agree to a flexible working request to look after a disabled relative contravened disability discrimination laws.

The Court is expected to deliver its judgment this year.

Staff on long-term sickness should accrue holiday pay

The Advocate-General concluded that a workers entitlement to paid holiday as provided by the Working Time Directive (not contractual holiday entitlement over and above that required by the directive) does accrue whilst a worker is on sick leave. He added that a worker may not take this holiday entitlement whilst on sick leave, but was entitled to compensation to reflect accrued but untaken holiday leave if their contract was terminated, even if they were off sick for an entire year. However, the position remains that statutory holiday entitlement cannot, under UK law, be carried from one holiday year to the next holiday year.

If the ECJ follows the Advocate-Generals opinion, employers will generally have to pay higher termination costs than has been the case to date where an employee, who has been on long-term sick leave, is dismissed or resigns.

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