Labour & European Law Review Weekly Issue 379 23 July 2014
Employers have a duty to make reasonable adjustments if a “provision, criterion or practice” (PCP) puts a disabled employee or job applicant at a substantial disadvantage compared to someone who is not disabled. In Hainsworth v Ministry of Defence (MoD), the Court of Appeal held that the duty to make adjustments does not extend to non-disabled employees who are “associated” with a disabled person.
Ms Hainsworth was employed as an Inclusion Support Development Teacher attached to the British armed forces based mainly in the Paderborn garrison in Germany. Although the MoD provided education and training for the children of service and civilian personnel living at the garrison, it did not provide the necessary services required by Ms Hainsworth’s daughter, Charlotte, who had Down’s Syndrome.
In August 2011, she requested a transfer to a location in the UK in order to meet her daughter’s special needs, but the MoD refused.
Ms Hainsworth argued that as she was “associated” with a disabled person (her daughter), she was covered by the provisions of the Equality Act 2010 and her employer was therefore obliged to make adjustments to the PCP that she had to be based in Germany. By not agreeing to change her work location, her employer had failed to make a reasonable adjustment under section 20 of the Act.
However, as Ms Hainsworth accepted that this duty only applied under the Act to a disabled person who was either an applicant for a job or already an employee (which clearly her daughter was not), she argued that Article 5 of the European Equal Treatment required an employer to make a reasonable adjustment for an employee associated with a disabled person and that the Equality Act should be interpreted in light of Article 5.
Article 5 states that “In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability 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."
Decision of Court of Appeal
After the tribunal and the EAT rejected her arguments, Ms Hainsworth appealed to the Court of Appeal which also dismissed her claim.
It held that Article 5 was limited to measures that would help disabled employees or prospective employees of the employer in question and could not be extended to someone “associated” with an employee, such as Ms Hainsworth’s daughter. As there were no clues as to who that person might be, the Article would become “hopelessly uncertain”.
The Court also relied on the judgment of the European Court in Coleman v Attridge Law, a case which had found that the mother of a disabled child had been directly discriminated against. In that case the Court said that the duty to make a reasonable adjustment would be meaningless if it was not limited to disabled employees.
Given the clear wording of Article 5 the Court said that there was no basis for referring the matter to the European Court for further consideration.
This case makes clear that the duty to make a reasonable adjustment does not apply to those who are associated with a person with a disability. However, they may be able to claim direct discrimination if they are treated less favourably because of their association with a person with a disability. Furthermore, employees who have 26 weeks continuous service who wish to work flexibly in order to care for a disabled employee can submit a request to their employer, although any request would be considered alongside other employees following the extension of the right to request flexible working to all employees with 26 weeks continuous service from 30 June 2014.