15th June 2014
Reasonable Adjustments by Association
It is well-established that employees are protected from discrimination by association (i.e. discrimination against a person on grounds of their association with a disabled person). Employers will also be familiar with the requirement to consider reasonable adjustments to help disabled employees and job applicants where a ‘provision, criterion or practice’ of the employer puts them at a substantial disadvantage compared to others.
However, does the duty to make reasonable adjustments extend to the carer of a disabled person? No, held the Court of Appeal in the case of Hainsworth v Ministry of Defence.
Ms Hainsworth worked for the Ministry of Defence and was based in Germany. Her daughter, who suffers from Down’s Syndrome, could not utilise the educational facilities provided by the Ministry of Defence for employees based outside the UK and therefore Ms Hainsworth formally requested a transfer to the UK. The Ministry of Defence rejected Ms Hainsworth’s request and she brought claims against them, including for associative disability discrimination on the basis that a transfer to the UK to meet her disabled daughter’s educational needs was a reasonable adjustment under the Equality Act 2010.
Ms Hainsworth’s claims were rejected by the original Employment Tribunal and Employment Appeal Tribunal so she appealed to the Court of Appeal where it was argued that Article 5 of the Equal Treatment Framework Directive (the European law which the Equality Act implements) should be interpreted to require employers to make reasonable adjustments for employees associated with a disabled person.
The Court of Appeal rejected Ms Hainsworth’s appeal. It held that “the obvious and entire focus of Article 5 is upon provisions to be made by an employer for his disabled employees, prospective employees and trainees” and that it “would be rendered meaningless or could prove disproportionate if they were not limited to disabled persons only”. Further, the Court of Appeal stated that, even if they agreed the “disabled beneficiary” of Article 5 could be a person other than the employee, there was no reference to who that other person might be and therefore the Article, and the concept of association, would be “hopelessly uncertain”.
At first glance, Hainsworth does provide some relief to employers in confirming that there is no obligation to make reasonable adjustments in relation to an employee or job applicant who is associated with a disabled person. However, employers should bear in mind that employees with at least 26 weeks' continuous employment who have caring responsibilities can make a request to work flexibly (which will be extended to all employees regardless of their caring responsibilities from 30 June) and such requests should be handled appropriately. As a result, although there is no obligation to do so, employers may wish as a matter of good practice and to foster positive employee relations to consider what they could do in terms of adjustments to assist employees who have caring responsibilities.
For more information, please contact Lynne Adams on 01604 463308 or to email Lynne click here
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