Flexicurity and Discrimination by association
In a corner stone JUDGMENT OF THE COURT (Grand Chamber London South,United Kingdom, 17 July 2008)made on the Coleman Case C303/06[1], Ms Coleman, was subject to discrimination because she needed to care for her severely disabled child, and required adaptation to her work schedule. Her employers considered negatively such schedule accommodations, submitting her to undue harassment:
26It is also apparent from the order for reference that, under United Kingdom law, where there is a preliminary hearing on a point of law, the court or tribunal hearing the case assumes that the facts are as related by the claimant. In the main proceedings, the facts of the dispute are assumed to be as follows:
–On Ms Coleman’s return from maternity leave, her former employer refused to allow her to return to her existing job, in circumstances where the parents of non-disabled children would have been allowed to take up their former posts;
–her former employer also refused to allow her the same flexibility as regards her working hours and the same working conditions as those of her colleagues who are parents of non-disabled children;
–Ms Coleman was described as ‘lazy’ when she requested time off to care for her child, whereas parents of non-disabled children were allowed time off;
–the formal grievance which she lodged against her ill treatment was not dealt with properly and she felt constrained to withdraw it;
–abusive and insulting comments were made about both her and her child. No such comments were made when other employees had to ask for time off or a degree of flexibility in order to look after non-disabled children; and
–having occasionally arrived late at the office because of problems related to her son’s condition, she was told that she would be dismissed if she came to work late again. No such threat was made in the case of other employees with non-disabled children who were late for similar reasons.
The conclusion of the courtwas clearly indicating that according to Article 2(3) of Directive 2000/78, harassment, which is deemed to be a form of discrimination within the meaning of Article 2(1), must be interpreted as not being limited to the prohibition of harassment of people who are themselves disabled but also of the parent in charge of their dependent family member, in this case a severely disabled child:
63In the light of the foregoing considerations, the answer to the second part of Question 1 and to Question 4 must be that 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).
This case demonstrates clearly that there is a high risk of discrimination for families who have a dependent member to care for and who require from their employer adjustments to their work schedules accordingly. We speak of “Dependent family member” and not only of a child with disability as we think that the ruling should be extended to cases where employees have to support family members because of a severe illness, or for ageing family members not able to care for themselves anymore.
In the debate about Flexicurity, such situations must be considered in order to propose a balanced view on the flexibility in work organisation, be it about work schedules or activity relocation.
Flexible work schedules must work also for employees who face a specific difficulty within their families. An employee who asks for a schedule adaptation or refuses a new work schedule in reason of his/her life situation should be protected against a negative management attitude. It could be that, even if the dependent person receives care in a professional service, the family still requires regular schedules in order to take their dependent family member to and from the service or has limited visit hours to that service, making it difficult to accept a change in his her work schedule.
Likewise, in the name of Flexicurity, an employee may be asked to go work in another location of his/her company. Here it is not only the need to care personally for the dependent family member, it could be that services for the dependent family member are not available at the new location or simply too distant to enable regular commuting or visits. Here too, provision must be made in the flexicurity rules in order to avoid discrimination on the basis of having a dependent family member to care for.
Let’s add that since statistically such situations of having to care for a dependant family member tend to fall upon women, this constitutes de facto multiple discrimination situations, based on the gender of the employee and on the disability or age of the dependent family member.
In summary, expending on the Coleman Case, we urge the commission to introduce a specific flexibility (pun intended) in favour of people who have dependent family members in the various texts concerning flexicurity, this in order to avoid cases of discrimination by association.
Note that, even though we presented here cases of discrimination by association linked to flexicurity, it is obvious that flexicurity should also take into account the risks of direct discrimination for people with disabilities or any other grounds of discrimination[2].
Paul TREHIN
Autism Europe
[1] JUDGMENT OF THE COURT (Grand Chamber), 17 July 2008(*) (Social policy − Directive 2000/78/EC − Equal treatment in employment and occupation − Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) − Direct discrimination on grounds of disability − Harassment related to disability − Dismissal of an employee who is not himself disabled but whose child is disabled − Included − Burden of proof), In Case C303/06,
[2] The case of people with disabilities who could have difficulties accepting a new schedule or a new location is obviously understandable. Availability of timely transport, or even to any transport at all, could be a serious problem. Some work schedules may be incompatible with some forms if disabilities.
There may be cases where a same sex couple may face difficulties justifying a refusal to move to another job location which would take that person away from his/her .