Discrimination by Association: Part 1
Consider the following scenario: a student is repeatedly absent from lectures; when challenged, she explains that she has been unable to attend, owing to the need to care for her disabled child. She asks if she can have the lectures recorded for her, knowing that that facility would be permitted to someone who found it difficult to attend because they were themselves disabled. What do you, as the person responsible for making the decision, do?
On the one hand, you have the lecturer, who is reluctant to have ever more students finding excuses not to attend his lectures, instead demanding them in purely electronic form. Indeed, he can see himself ultimately having to speak to recording equipment in an empty room. On the other hand, you have a great deal of sympathy for the young mother, who has a severely disabled son, and whose determination to continue with her degree without compromising the care of her child you greatly admire.
You have in the back of your mind a dim recollection of a case from a few years ago involving a Mrs Coleman. You recall that Mrs Coleman successfully brought a case against her employers for discrimination because she had a disabled son, and her employers would not allow her the flexible working hours she needed to look after him. You wonder whether that also applies in the field of education, and also whether it has survived the replacement of the 1995 Act by the Equality Act 2010.
It is now well known that, unlike the previous statutory regime, the Equality Act 2010 streamlines the legislation so that, by and large, the same terms are used to define all types of discrimination (disability, gender, race etc. – referred to in the Act as “protected characteristics”) in all contexts (employment, schools, HE institutions etc.)
S.13 (1) of the Act, which defines direct discrimination, reads as follows:
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
There is no requirement that the protected characteristic should belong to B. That is deliberate. Hence, it may be that the protected characteristic belongs to C, who is associated with B. Thus an employer, or education provider, as the case may be, must not treat B less favourably than others because of a protected characteristic appertaining to C, who is associated with B. Consequently, it is clear that it would be unlawful to decide, as a matter of policy, not to offer admission to students who are the parents of disabled children (in case they might miss more time from their studies than others, or because they might find studying and coping with a disabled child too stressful) unless that was a proportionate means of achieving a legitimate aim, which is unlikely.
In the case in point, on the face of it, the treatment which might potentially be discriminatory is to refuse to allow the student to record lectures. Discrimination is defined in the Act as treating someone less favourably than someone else because of a protected characteristic, in this case, disability. But as a person who is not disabled would not generally be allowed to record lectures, if the mother of the disabled child is forbidden to record lectures, is she in fact being treated less favourably than any relevant comparator? At first sight, it seems that she may not be being treated less favourably than other non-disabled people, as her treatment is identical to their treatment.
On the other hand, you are aware that certain disabled people are allowed to record lectures, so you might think that if the mother was treated less favourably than them it would amount to discrimination. But no, that would not be the case, as it is expressly provided by s.13 (3) of the Act that “if the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B”. In this case B, the young mother, is not a disabled person, so the Act does not permit her to allege discrimination because she is treated less favourably than disabled persons. Note that the Act does not envisage A as being “a person who is not themselves disabled, but is associated with a disabled person”.
Yet we would all surely feel that fairness and common sense demands that, if the young mother is protected from not being offered a place at University merely because she has a disabled child, she should surely also, in the course of her studies, be entitled to at least the same leeway as a disabled person to assist her to overcome the difficulties of caring for a disabled child, in other words, she should be able to record lectures.
I believe that the answer is to be found by interpreting the “treatment” in the broadest possible sense. If, in this case, the treatment is not merely “being permitted to record lectures”, but “being given the means to access lectures”, or similar, it is clear than the lectures will not be as accessible to the young mother as to her unencumbered peers unless she is permitted to have them recorded.
Interpreting the Act in this way will permit you, as the decision-maker, both to treat the young mother sympathetically, and to re-assure the lecturer that it is not a case of opening the floodgates to allow his entire audience to ebb away.
[Part 2, which will consider whether it is necessary to make reasonable adjustments in the case of a person associated with a disabled person, will follow in the next issue]
About the author
Patricia is a Practising Consultant in the Dispute Resolution team.