The applicant in Hainsworth v Ministry of Defence was a civilian teacher attached to an army base in Germany. Her employer provided education facilities for employees' children at the base but there was no special provision for children with disabilities and the applicant's daughter, who has Down's syndrome, could not be schooled there. Her mother applied for a transfer to a UK location but this was rejected. Her claim that her employer had a duty to make reasonable adjustments for her was rejected by an Employment Tribunal and the EAT. The Court of Appeal has now confirmed those decisions.
The Court of Appeal found that the provisions of the European Directive on which the disability discrimination sections of the Equality Act are based are quite clear – they are intended to provide for disabled employees (and prospective employees) only and cannot be read as extending to employees who are associated with someone who has a disability. The applicant pointed to the Coleman v Attridge Law case in 2008 where the European Court had found that an employee who was treated less favourably than other employees because she was the primary carer for a disabled child was protected under the Directive. But the Court of Appeal found that this case was different – Colemanwas a direct discrimination case and the Directive does require protection against associative discrimination. The Equality Act therefore includes within the definition of direct disability discrimination the situation where an employer treats an employee less favourably because of the disability of another person. This is not the case with the duty to make reasonable adjustments, however.
An employee in a similar position to that of the applicant in Hainsworthwould not be covered by the statutory right to request flexible working (to be extended to all employees with 26 weeks' service from the end of this month) because it only covers a change of workplace as between office and home. But employers should be aware that a refusal of a wider request could conceivably be sex discrimination in certain circumstances and, in a case we featured earlier this year (The Solicitors Regulation Authority v Mitchell), the EAT found that the withdrawal of an employee's flexible working arrangements (in circumstances where similar arrangements for a male colleague were not) was direct sex discrimination and could not therefore be justified by the employer.