“But My Child Is Disabled” – Understanding Discrimination by Association

Nursery leaders can sometimes become understandably nervous about managing an employee who has a disabled child but discriminated by association is not straightforward.

If attendance becomes problematic, flexible working arrangements are not working, or the employee cannot fulfil their contracted hours, managers may worry that taking action could amount to disability discrimination.

This is where Coleman v Attridge Law [2008] is important.

This case established the principle commonly known as discrimination by association.

Sharon Coleman was not disabled herself, but she was the primary carer for her disabled son. She alleged that she had been treated less favourably and harassed because of her son’s disability.

The European Court of Justice (ECJ) confirmed that protection against direct disability discrimination was not restricted to people who were themselves disabled. It could also protect somebody who was treated less favourably because of their association with a disabled person.

That principle is now reflected in the Equality Act 2010. The EHRC explains that a person can be protected from disability discrimination where they are connected to somebody who is disabled.

However, there is an important distinction for employers.

It is not automatically discrimination to take action against an employee who happens to have a disabled child.

The crucial question is: Why are you taking the action? Causation.

Let’s take two scenarios where a nursery employs two Nursery Practitioners with similar attendance records.

In our first case the Nursery Practitioner has a disabled child and the other does not. The child in question is struggling in mainstream school, isn’t attending school every day, and is having regular spells where they do not go in to school at all.

If the manager disciplines the first employee because they resent the disruption associated with their child’s disability, while overlooking comparable attendance issues for other employees, that could potentially be direct discrimination by association.

You can see the argument, you have taken action againts me, that you didn’t take against the other practitioner, my comparator. The difference between us is my disabled child.

But suppose the nursery consistently manages attendance and the employee has reached the same absence trigger as everybody else. The manager holds an attendance meeting, considers the circumstances, explores available options and ultimately takes proportionate action because the employee cannot meet the attendance requirements of their role.

It’s not as if the work of the Nursery Practitioner can be done at home.

The fact that some absences relate to caring for a disabled child does not, by itself, transform that management action into discrimination by association.

This distinction matters enormously.

Nursery managers should be compassionate and should explore options such as flexible working, time off for dependants, parental leave and any other appropriate arrangements. But compassion does not mean an employer can never address attendance, performance or contractual requirements.

Before taking action, ask yourself:

“Would I be taking broadly the same action if this employee did not have a disabled child?”

If the answer is yes, and you can demonstrate a genuine, non-discriminatory reason for your decision, Coleman does not prevent you from managing the situation.

The protection is against less favourable treatment because of the disability, not against reasonable management simply because an employee is associated with someone who is disabled.

I think that final distinction is particularly useful for nursery managers because it tackles the common misconception that “my child is disabled” means absence connected with caring responsibilities cannot be managed. The law is considerably more nuanced than that.

Because managing employee’s who have children that are disabled is very complex you may need HR Support. That’s where the team at Redwing come in. To book a discovery call reach out to the team on 01527 909436.