Referring to the European Court of Justice's ruling in the Coleman case granting a single mother protection due to a disabled child, the Board of Equal Treatment has extended the protection against discrimination due to disability so that it also covers the cohabitee of the disabled person.

The Board states no criteria as to when the cohabitee or another relative is considered covered by the protection, and the Board thereby opens up for a very wide application of the Act. This very wide construction of the persons protected under the Act does not expressly appear from the grounds of the European Court of Justice in the Coleman case, but is to be found in the directive's objective, which is to avoid discrimination due to disability, notwithstanding who is subject to the discrimination. 

BACKGROUND

In February 2013, the cohabitee of an employee working in customer service was admitted to the hospital due to an infection in the spinal cord. In this connection, the employee was absent for eight days in two separate periods. Subsequently, the employee was dismissed due to restructuring of his department. 

THE BOARD'S CONCLUSION

With reference to the European Court of Justice's practice in the Coleman case, the Board concluded that the claimant was covered by the prohibition under the Act against discrimination due to disability as a consequence of his cohabitee's disability.

The Board found, however, that no actual circumstances had been proved giving rise to the assumption that the claimant had actually been subject to discrimination, and the employee was therefore not awarded compensation.

SCOPE OF PROTECTION

In the ruling in case C-303/06 - the Coleman case - the European Court of Justice stated that the protection prohibiting discrimination due to disability is not only restricted to cover the disabled person, but also a disabled child's breadwinner providing most of the care that the child needs. 

Subsequently, the Eastern High Court ruled on the same subject in UfR 2010.2610V according to which the mother of a disabled child was considered covered by the protection of the Act and awarded compensation of DKK 180,000.

In other words, it is generally recognised that the parent providing the primary care to his/her disabled child is protected against discrimination due to the child's disability.

So far, the practice concerning the scope of the Act as regards discrimination due to disability has solely been extended to protect the disabled child's breadwinner.

The Board's decision is therefore the first to expand the protection with the result that it also covers other relations than a disabled child's breadwinner.

Typically, such widening construction will have to be presented to the European Court of Justice for the purpose of clarification of the current legal position.

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Marianne Lage

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