One of the changes introduced under the Equality Act 2010 was the express protection against discrimination for those associated with a person who has a protected characteristic within the meaning of the Act. This concept of ‘associative discrimination’ means that an employee is protected against discrimination by their employer on the grounds that they have an association with, for example, another person who is disabled. The protection applies in respect of both direct discrimination and harassment.
The duty to make reasonable adjustments under the Act only applies to an “interested disabled person”: an applicant for employment (or someone who has notified the employer that they might be an applicant) or an employee of the employer.
The employee in this recent case, Ms Hainsworth, was employed by the Ministry of Defence in a teaching role based in Germany. Her daughter, who has Down’s syndrome, could not attend school at the garrison where she worked since the facility was not designed for children with “significant needs”. The MoD rejected Ms Hainworth’s request for a transfer to the UK in order to meet her daughter’s needs.
Ms Hainsworth brought a claim in the employment tribunal, arguing that the MoD should have agreed to her request for a transfer, as a reasonable adjustment. The tribunal rejected her claim on the basis that the Equality Act 2010 only requires an employer to make reasonable adjustments for an employee or a job applicant who is themselves disabled, not for a non-disabled employee who is associated with a disabled person.
Ms Hainsworth’s appeals to the Employment Appeal Tribunal and the Court of Appeal have both been dismissed. In its recent decision, the Court of Appeal wholeheartedly rejected the argument that the European Equal Treatment Directive (2000/78/EC) required an employer to make reasonable adjustments for an employee who is associated with a disabled person. It was satisfied that the wording of the Directive was clear in relation to reasonable adjustments: it was only intended to confer protection on disabled employees, prospective employees and trainees.
The implications for employers had the Court of Appeal reached the opposite conclusion in this case would have been enormous, significantly extending the duty to make reasonable adjustments. It is reassuring that we now have clear judicial authority to confirm that the duty is limited to those who have a disability themselves.
A copy of the Court of Appeal judgment is available here.