The obligation placed on employers to make reasonable adjustments to premises or working practices can be invaluable to allow employees with disabilities get or remain in work. The case of Hainsworth v Ministry of Defence considered whether the obligation to make reasonable adjustments applied to employees who were not disabled themselves but were associated with disabled people.
Background Ms Hainsworth worked for the Ministry of Defence (MoD) in Germany in a civilian role. Her 17 year old daughter, Charlotte, was disabled, and although the MoD make arrangements to educate children of non-UK based employees, these do not assist children with significant needs such as Charlotte’s. Ms Hainsworth therefore requested a transfer to the UK so that Charlotte’s requirements could be more adequately met. The MoD refused and Ms Hainsworth brought a claim under the Equality Act 2010 (the EqA), claiming a failure to make reasonable adjustments.
The Law Where an employer applies a provision, criterion or practice that puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, it should take reasonable steps to avoid the disadvantage (sections 20(3) and 39(5), EqA).
Schedule 8 to the EqA goes on to provide that adjustments need only be made for an "interested disabled person". This means a potential or actual applicant for employment or an employee of the employer. These provisions of the EqA implement Article 5 of the Equal Treatment Framework Directive (2000/78/EC) (the Directive) on "reasonable accommodation" required to enable people with disabilities to “have access to, participate in or advance in employment…”
Although Schedule 8 of the EqA 2010 suggests there is no requirement to make reasonable adjustments for non-disabled employees associated with a disabled person, Ms Hainsworth reasoned under Article 5 of the Directive, and by analogy with the case of Coleman v Attridge Law, that the obligation to make reasonable adjustments should be extended to those associated with a disabled person.
Decision The claim was unsuccessful both in the Employment Tribunal and on appeal to the Employment Appeal Tribunal (EAT), and Court of Appeal, despite intervention by the Equality and Human Rights Commission (EHRC).
It was confirmed that the EqA only requires an employer to make reasonable adjustments for a disabled employee or job applicant. There is no obligation to make adjustments for a non-disabled employee associated with a disabled person.
The distinction referred to in Coleman between direct discrimination and harassment was restated - where employees should be protected against discrimination by association – and the reasonable adjustment requirements which apply only to disabled people. If it were otherwise employers would be placed under an obligation to make adjustments without any clear definition of the concept of associated persons, which would be onerous and disproportionate.
Comment Kate Wyatt, a partner in our employment law team commented: “The Court of Appeal, despite committed argument by Ms Hainsworth and the EHRC, refused to extend the ambit of discrimination by association to the duty to make reasonable adjustments, restricting it to employees or applicants. This reflects the purpose of the obligation to make reasonable adjustments which is to enable disabled employees to find and retain work.
“Practically speaking however, employers should be aware that employees in Ms Hainsworth’s situation and since 30 June, with older disabled children, are entitled to request to work flexibly and such requests should always be treated carefully and given full consideration.
“Employers should also take care over how employees with caring responsibilities for people with disabilities are treated in these circumstances to avoid liability for direct discrimination or harassment by association.”
If you would like to discuss this issue in more detail, please contact a member of our Employment team.
