There has always been some uncertainty on the part of employers as to whether they are required to make reasonable adjustments on behalf of a non-disabled employee who is associated with a disabled person, for example as a carer. This confusion is partly caused by the belief that employers are required to make the adjustment in order to avoid "associative discrimination" and so in practice they often accede to such a request. In a recent case, the Court of Appeal was asked to review the extent of the employer's obligations towards in relation to associative discrimination.
Ms Ainsworth was employed by the Ministry of Defence and based in Germany. Her daughter has Down's syndrome. The MOD provided facilities to educate children of employees who worked abroad, but these arrangements did not extend to children with special needs. In 2011, Ms Ainsworth made a request to be transferred to the UK in order to deal with her daughter's medical condition and education. The MOD refused the request. Ms Ainsworth subsequently issued proceedings on the basis that the MOD should have made the adjustment due to her association with her daughter. Her case rested partly on a judgement in a previous case but principally on the wording of the Equal Treatment Directive. She argued that the Directive should be construed as meaning that an employee associated with a disabled person should have the same protection as a disabled employee, and in this case, on the duty to make reasonable adjustments.
Ms Ainsworth lost her claim in both the Employment Tribunal and the Employment Appeal Tribunal. At both hearings it was decided that the wording of the Equality Act 2010 (the applicable legislation that implements the Directive) does not extend the duty to make reasonable adjustments to a non-disabled employee associated with a disabled person. The duty is only limited to employees who are themselves disabled. Ms Ainsworth appealed to the Court of Appeal. The Court of Appeal rejected her claim and upheld the earlier Tribunal decisions. It held that associative discrimination is limited to direct discrimination only, and does not extend any further, in particular to the duty to make reasonable adjustments. It said that the wording of the Equality Act 2010 and the Directive were plainly clear on this point and to extend the legislation to cover non-disabled employees would be to render its meaning pointless i.e. that it is there to protect disabled employees only.
This case has confirmed quite emphatically that the Equality Act 2010 only covers employees with a disability. Non-disabled employees who are associated with a disabled person are protected but only to the extent that they suffer any direct discrimination. As such, there is no requirement for employers to make reasonable adjustments on their behalf, even if they are caring for a disabled person.
From a best practice point of view, employers should consider requests such as Ms Ainsworth's carefully and at least see if it can be accommodated. This would be a wise approach as employers should remember that such an employee has the alternative option of making a flexible working request and that this brings with it the possibility of a sex discrimination claim if the request is unreasonably refused, for example where the employee is female and she is responsible for the care of a child (and arguably other dependants), whether or not they have a disability.