Reasonable adjustments through association

Background

Disability is a protected characteristic under the Equality Act 2010 (EqA 2010). It is unique in that an employee with a disability can require their employer to make ‘reasonable adjustments’ in such circumstances where the disabled employee is at a substantial disadvantage by reason of:

• a provision criterion or practice adopted by the employer;
• a physical feature of the employer’s premises; or
• a failure on the part of the employer to provide an auxiliary aid.

This is an active duty on an employer to explore and take all reasonable steps to identify where reasonable adjustments can be made to allow an employee to undertake a role provided such steps are not disproportionately burdensome on the employer.

The recent case of Hainsworth v Ministry of Defence explored whether there is any duty on an employer to make those adjustments if the disabled person is only associated with the employee.

Facts and outcome

When a request by Mrs Hainsworth to transfer her job from Germany to the UK in order to better care for her disabled daughter was rejected by the MoD, Mrs Hainsworth brought a claim under EqA 2010. The basis of her claim was that the MoD should have made the reasonable adjustment of allowing her to transfer on the basis of her daughter’s disability. The Employment Appeal Tribunal upheld the decision that there is no duty on an employer to make adjustments for non-disabled employees who are in some way associated with a disabled person.

Mrs Hainsworth appealed to the Court of Appeal, arguing that European legislation requires an employer to make reasonable adjustments for an employee associated with a disabled person, and therefore the EqA 2010 must be interpreted in the same way. The court stated that the purpose of EqA 2010 is clearly to require employers to make provisions only for disabled employees and job applicants.

The Court of Appeal clarified that previous case law had emphasised that European legislation offered protection against ‘associative discrimination’ but not an additional duty in terms of reasonable adjustments on the basis of association.

Practical effects

An employee is unable to require their employer to make reasonable adjustments on the basis of their association with a disabled person. However, if an employee does care for or have a disabled family member (or other associated person) on which they are basing any requests (such as flexible working, transfers etc), it would still encourage good working relations if the employer provided assistance where possible.

Employers should always be mindful of other avenues through which employees could pursue related issues.  For example, if a request for reasonable adjustments was rejected, a female employee responsible for an ill child may be able to bring a claim for indirect sex discrimination or an employee could make a flexible working request.  Therefore, when faced with an employee who is caring for a disabled person, although some caution should be exercised in accommodating requests and most employers will want to consider what they can do to help, there is no direct duty to make reasonable adjustments.

For more information please contact Chris Maddock or 0191 211 7919.