No duty to make reasonable adjustments on associative discrimination grounds

The Court of Appeal has confirmed in the case of Hainsworth v Ministry of Defence that employers have no obligation to make reasonable adjustments for non-disabled employees including those employees who are associated with a disabled person (i.e. an employee whose child is disabled).  

The Law

Under the Equality Act 2010 (EqA) employers are obliged to make reasonable adjustments for disabled people. The duty incorporates a number of requirements, the first of which arises “where a provision, criterion or practice of [the employer’s] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled”. In such circumstances an employer must “take such steps as it is reasonable to have to take to avoid the disadvantage”.

Schedule 8 of the EqA confirms, in a rather convoluted fashion, that a “relevant matter” for the purposes of the duty to make reasonable adjustments means either (a) “deciding to whom to offer employment” and in that case “disabled person” means “a person who is, or has notified [the employer] that the person may be an applicant for the employment” or (b) ”employment by [the employer]” and in that case “disabled person” means “an applicant for employment by [the employer] or “an employee of [the employer]”.

The provisions of the EqA are intended to implement the provisions of the Equal Treatment Framework Directive (the Directive). Article 5 of the Directive provides that “In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodations shall be provided. This means that employers shall take appropriate measures where needed in a particular case, to enable a person with a disability (our emphasis) 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”.

Facts

Ms Hainsworth (Ms H) was employed by the MoD and based abroad (the provision, criterion or practice in this case being that Ms H was required to provide her services within a British enclave in Germany). Ms H’s child has Down’s Syndrome. In 2011 Ms H requested a transfer to the UK to assist her in meeting her daughter’s special needs.

The transfer request was refused and Ms H brought an Employment Tribunal (ET) claim under the EqA asserting that the MoD should have made the reasonable adjustment of transferring her to the UK on account of her child’s disability. Ms H’s claimed that the right to the adjustment she requested was provided to her by virtue of Article 5 of the Directive and that the EqA should be interpreted so as to give effect to the Directive or in the alternative that she could rely directly on the Directive against the MoD, which is an emanation of the UK State.

ET decision

The ET did not uphold the claim and found that the EqA requires employers to make reasonable adjustments for either job applicants or employees who are disabled and does not oblige employers to make reasonable adjustments for non-disabled employees by virtue of their being associated with a disabled person.

EAT decision

Ms H appealed to the Employment Appeal Tribunal (EAT) but that appeal was unsuccessful. Amongst other things the EAT determined that Ms H’s case and reliance on the Directive was “unarguable

Court of Appeal decision

Ms H appealed to the Court of Appeal (CoA).

Ms H and the Equality and Human Rights Commission (EHRC), which acted as an Intervener in the case, asserted that the Directive necessitated employers making reasonable adjustments for employees associated with disabled people and accordingly the EqA had to be interpreted as giving effect to the Directive in that way.   The appeal was unsuccessful.

The CoA found that the “obvious and entire focus” of Article 5 the Directive was to ensure that employers made appropriate provisions for disabled employees or disabled prospective employees. The CoA determined that if, as put forward for Ms H, a disabled beneficiary of Article 5 could be someone other than an employee, the Article gave no guidance as to who that person might be, rendering the Article “hopelessly uncertain”.

The CoA also found that the Coleman v Attridge Law case, which Ms H had sought to rely upon did not assist her. Readers may recall that this case, which was remitted to the Court of Justice of the European Union (CJEU), determined that an employee was protected against associative discrimination in relation specifically to direct disability discrimination and harassment.

The CoA confirmed that the CJEU had drawn a specific distinction between the Directive’s provisions insofar as they related to direct disability discrimination and harassment, which it determined required protection against associative discrimination and the provisions obliging employers to make reasonable adjustments. The Coleman case, found the CoA, supported a “straightforward interpretation of Article 5 of the Directive”, namely – its terms are confined to the implementation of adjustments to assist disabled employees or prospective employees.

The CoA consequently determined that even if it was wrong about the application of Article 5 and the Directive did afford the protection being sought by Ms H, there was considerable doubt as to whether or not the EqA could be interpreted to provide such protection. It further found that the relevant provisions of the Directive were not directly effective against the MoD because Ms H’s case required an “open-ended and unspecific approach” to the disabled person in question, which interpretation the court concluded meant Article 5 was “insufficiently precise to permit its application by way of direct effect”.

Conclusion

This case will provide comfort and certainty to employers regarding the extent of the obligation to make reasonable adjustments, specifically that these need only be made for job applicants or employees who are disabled.

However, care still needs to be taken when considering more generally requests from staff to adjust their positions/working arrangements given the overlapping family friendly rights that employees have. These rights require employers to ensure that staff are being treated consistently and in accordance with their legal rights in circumstances where they wish to alter their working arrangements in order, amongst other things, to care for family members. For example, all qualifying employees have the right to request flexible working arrangements and Dependants’ Leave to assist them permanently and temporarily (respectively) in changes to their working arrangements/time off. Employers who do not deal with such matters reasonably and consistently are at risk of claims being brought under the relevant family friendly legislation, but also more significantly of discrimination claims; most likely indirect sex discrimination claims.

Click one of our articles to continue reading dependants leave and disappearing employees and the latest TUPE update. Binding communications about pay, when employees strike, the on-call conundrum, the future of Employment Tribunal fees, the scope of reasonable adjustments and finally In a nutshell.

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