01/07/2014
Are employers obliged to make reasonable adjustments for non-disabled employees who have caring responsibilities for a disabled person? Jodie Sinclair reports on a recent Court of Appeal decision that provides clarification on this question.
The background
Reasonable adjustments
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, the Equality Act 2010 (EqA 2010) may oblige the employer to make reasonable adjustments to avoid the disadvantage.
Under the EqA 2010, reasonable adjustments need only be made by the employer for an "interested disabled person". An interested disabled person is defined as
- a person who has notified the employer that they might be an applicant for employment;
- an applicant for employment; or
- an employee of the employer.
The EqA 2010 does not, however, place an obligation on an employer to make reasonable adjustments for non-disabled employees.
Associative discrimination
As you will no doubt recall, the landmark 2008 European Court of Justice (ECJ) decision, Coleman v Attridge Law established that a non-disabled employee may be able to bring a claim for direct disability discrimination by virtue of their association with a disabled person.
In that case, Ms Coleman successfully brought a claim against her employer for direct disability discrimination. Ms Coleman was not disabled, but she did have primary caring responsibilities for her disabled son and alleged that she was discriminated against as a result.
The ECJ held that direct discrimination on the grounds of disability and in relation to a non-disabled employee who is a primary carer for a disabled person is prohibited by Article 5 of the Equal Treatment Framework Directive. The decision of the ECJ was later brought into UK legislation within the EqA 2010 - so the concept of 'associative' disability discrimination is now firmly part of our domestic law.
Linking the principles
This month, in Hainsworth v Ministry of Defence, the Court of Appeal considered whether the decision in the Coleman case could extend an employer's obligation in relation to the principle of reasonable adjustments to an employee associated with a disabled person.
The facts
Ms Hainsworth is employed by the Ministry of Defence (MoD) as a teacher based in Germany. Her daughter has Down's Syndrome.
The MoD provides education facilities for children of employees who are based outside the UK, but the facilities that were provided where Ms Hainsworth worked, were not suitable for her daughter's needs.
In 2011, Ms Hainsworth requested a compassionate transfer to the UK on the grounds that it would be a more suitable environment for her daughter to access the appropriate level of education her condition required.
The request was refused and Ms Hainsworth subsequently brought a claim under the EqA 2010 that the MoD should have made the reasonable adjustment of transferring her to the UK, based on her association with her disabled daughter.
At first instance, the Employment Tribunal rejected Ms Hainsworth's claim stating that, under the EqA 2010, an employer was only required to make reasonable adjustments for an employee or job applicant who was disabled. This obligation did not extend to employees who were in some way 'associated' with a disabled person.
The Employment Appeal Tribunal upheld the ET's decision. Ms Hainsworth appealed to the Court of Appeal.
The decision
The Court of Appeal dismissed Ms Hainsworth's appeal.
The Court held that the purpose of Article 5 of the Framework Directive is that employers make provisions for disabled employees and prospective employees.
The Court also pointed out that in the Coleman case, the ECJ actually drew a distinction between the Framework Directive's provisions relating to direct discrimination and those relating to reasonable adjustments, stating that it was only the former that required protection against associative discrimination.
Most importantly, the Court pointed out that the provisions of Article 5 of the Framework Directive "would be rendered meaningless or could prove disproportionate if they were not limited to disabled persons only".
The Court added that the question of who the 'associated person' might be is vague, open-ended and "hopelessly uncertain" because nowhere does the Framework Directive specify what the nature of the relationship between the employee and the disabled person must be.
What does this mean for me?
This case confirms that employees cannot bring a claim against their employers for a failure to make reasonable adjustments in relation to a disabled person for whom the employee cares and, therefore, 'associative discrimination' under the EqA 2010 has a narrow scope.
Although a helpful decision, there are still issues of which employers should be aware.
- An employee who feels they cannot work their normal hours due to caring responsibilities are still entitled to make a request for flexible working. The law behind flexible working is changed on 30 June 2014 and is now extended to all employees (please click here for more details).
- Indirect sex discrimination may still remain an issue if an employee is requesting changes to their terms and conditions for childcare reasons (regardless of whether or not the child in question is disabled).
