The issue was referred to the ECJ after a legal secretary, Ms Coleman, alleged that she had been treated less favourably than other employees because she was the primary carer of a disabled child. She claims, for example, that parents of non-disabled children had been allowed flexibility with regard to working hours that she had not, and that she had been subjected to insulting comments about both her and her child.

The ECJ concluded that the Directive should not be interpreted as meaning that the prohibition on direct discrimination is limited to people who are themselves disabled. Where an employer treats a non-disabled employee less favourably than another employee in comparable circumstances, and it is established that the less favourable treatment is based on the disability of the employee’s child, such discrimination will be contrary to the prohibition laid down by the Directive. The same is true of the prohibition on harassment.

The next question is whether or not the UK tribunals will find that the domestic legislation - the Disability Discrimination Act 1995 - is capable of supporting this interpretation of the Directive, ie if it can be interpreted in such a way that it prohibits discrimination by association.

As the Directive also covers age, sexual orientation and religious discrimination, it follows that discrimination by association will also apply to these areas. This is a particular issue as far as age discrimination is concerned. While, for example, the Employment Equality (Sexual Orientation) Regulations 2003 outlaw discrimination “on grounds of sexual orientation”, thereby apparently covering discrimination by association, the Employment Equality (Age) Regulations 2006 refer only to discrimination “on grounds of [the claimant’s] age”.