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Associative Discrimination

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[Thanks to Will Dobson of Cloisters for writing this summary]

The EAT has, this morning, given another important and far reaching judgment in the long running case of Attridge Law v Coleman.

It will be recalled that the ECJ held associative discrimination is proscribed by Directive 2000/78 EC (see previous bulletins). After the ECJ’s judgment, the tribunal was persuaded to interpolate words into s.3A(5) and 3B of the DDA to outlaw associative discrimination. EBR Attridge Law LLP appealed, on the basis that the tribunal had “distorted and rewritten” the DDA; also, that until the time for compliance with the Directive had expired in December 2006 the Courts had no Marleasing duty to interpret domestic law.

Underhill P upheld the tribunal’s decision. In so doing, he followed the approach to interpolation in Ghaidan v. Godin-Mendoza (2004), in the context of s.3(1) of the HRA.
Of striking significance is the extent of interpolations Underhill P makes. He adds a new s.3A(5A):

3A(5A) A person also discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person.

Also, a new sub-section (3) to s. 3B:

(3) A person also subjects a person (A) to harassment where, for a reason which relates to the disability of another person (B), he engages in unwanted conduct which has the purpose or effect of—
(a) violating A's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
Sub-section (2) applies to this sub-section, save that the relevant perception is that of A.

Underhill P also holds that the Courts’ Marleasing obligations bit at the moment the Regulations implementing the Directive came into force in 2004, (rather than when the deadline for implementation expired in December 2006).