Reasonable Adjustments and Associative Discrimination

In the case of Hainsworth v Ministry of Defence [2014] EWCA Civ 763 CA, the employment tribunal had to decide whether or not employers are obliged to consider making reasonable adjustments to accommodate employees that may have an association with a person who is disabled.

In this particular case, Dr Hainsworth’s daughter had Down’s Syndrome. Dr Hainsworth was employed by the Ministry of Defence (MOD) and was based in Germany, where the educational facilities provided by the MOD did not extend to the additional educational requirements of children who have ‘more significant needs.’ (http://www.bailii.org/ew/cases/EWCA/Civ/2014/763.html) This meant that Dr Hainsworth’s daughter could not be schooled in the Paderborn garrison where her mother worked. Consequently, Dr Hainsworth requested a transfer to the UK in 2011 in order to help meet the needs of her daughter.

This request was rejected, prompting Dr Hainsworth to allege that the MOD should have made a reasonable adjustment in order to accommodate her daughter’s needs by transferring her to the UK.

This claim was brought to tribunal as associative disability discrimination under the Equality Act 2010 and was rejected. The claim was then brought before Employment Appeal Tribunal (EAT) who argued that

“the wide-ranging duty to make reasonable adjustments under the Equality Act 2010 does not extend to individuals who are not employees of the employer or job applicants. The EAT confirmed that, art.5 is designed to accommodate disabled employees who have an employment relationship with the employer.”  (XpertHR)

The Court of Appeal upheld the decision made at Employment Appeal Tribunal (EAT) with both Dr Hainsworth and the Equality of Human Rights Commission who were supporting her conceding that her daughter would not be a potential beneficiary of the Equality Act 2010 when taking a literal interpretation.

Nonetheless, Dr Hainsworth argued that art.5 provided for the right to an adjustment to her employment in order to accommodate her disabled daughter’s needs. For clairty, Article 5 of Council Directive 2000/78/EC ” provides that,

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in or advance in employment, or to undergo training unless such measures would impose a disproportionate burden on the employer.”    

The appeal was dismissed by the Court of Appeal, who confirmed that the focus of art.5 relates to provisions to be made by an employer for employees, prospective employees and trainees who are disabled.

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