Posted by Gemma Ospedale, Partner
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No reasonable adjustment for associative disability
In Hainsworth v Ministry of Defence the Court of Appeal has held that an employer has no duty under the Equality Act to make reasonable adjustments for someone who has a disabled child. Under the wording of the Equality Act, the reasonable adjustment duty only applies to people who are disabled and not those looking after disabled people. Neither does the Equal Treatment Directive require adjustments to be made for non-disabled people.
The Claimant was employed by the Ministry of Defence in Germany. Her daughter has Downs syndrome. Although there are school facilities in Germany there were not sufficient facilities to meet the special needs of Ms Hainsworth’s daughter. Consequently she applied for a transfer to the UK but this was rejected.
Ms Hainsworth brought a claim under the Equality Act 2010 on the basis that the Ministry of Defence should have made reasonable adjustments by transferring her back to the UK because of her daughter’s disability. The Tribunal, upheld by the EAT, rejected the claim on the basis that the Equality Act did not require employers to make adjustments for employees whose relatives were disabled, or if they were in some way associated with a disabled person.
The Claimant appealed to the Court of Appeal and the Equality and Human Rights Commission intervened. They both argued that Article 5 of the Equal Treatment Framework Directive required an employer to make reasonable adjustments in associative disability situations and that the Equality Act was required to implement this Directive. Article 5 of the Directive concerns “reasonable accommodation” and states: “employers shall take appropriate measures… 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 Claimant drew an analogy with the ECJ decision in Coleman v Attridge Law that Articles 1 and 2 of the Directive required protection against associative discrimination. This was an ECJ decision which held that the Directive did provide protection against associative discrimination (the Claimant in this case had a disabled son and claimed that she had been discriminated against and harassed by her employer in being treated less favourably because of this).
The Court of Appeal rejected the appeal on the basis that it was obvious that Article 5 provided for disabled employees, prospective employees and trainees, and not non-disabled people associated with disabled people. It highlighted that in the Coleman case the ECJ drew a distinction between the Directive’s provisions regarding direct disability discrimination and harassment, which require protection against discrimination, and those concerning reasonable adjustments, which do not. This case concerned reasonable adjustments. The Coleman case concerned direct discrimination and harassment.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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