Hainsworth v Ministry of Defence [2014] EWCA Civ 763   

Why care?

Direct discrimination claims under the Equality Act 2010 (EqA 2010) based on association or perception are allowed in respect of all protected characteristics (apart from marriage and civil partnership). This protection had its roots in the ECJ's decision in Coleman v Attridge Law [2008] ICR 1128 in which it was held that the claimant, who had a disabled child, had protection against associative discrimination in respect of direct disability discrimination and harassment (when she asked for time and off an the opportunity to work at home to look after her child).

The claimant in the case below, Ms Hainsworth, a non-disabled employee, argued that, by analogy, her employer was obliged to make reasonable adjustments for her because of her daughter's disability. However, the EqA 2010 does not require an employer to make reasonable adjustments for a non-disabled job applicant or employee, regardless of whether they are "associated" with a disabled person.

The case

Ms Hainsworth was a civilian employee attached to the British armed forces in Germany as a teacher, with a daughter who has Down's syndrome. Due to her disability, her daughter could not be educated on the base and Ms Hainsworth requested for her employment to be transferred to the UK in order to be able to meet the special needs of her daughter. This was rejected. She brought a tribunal claim that this would have amounted to a reasonable adjustment to the provision, criterion or practice (PCP) for the Respondent to have allowed her application for a compassionate transfer and to have relocated her employment to the UK owing to her daughter's disability. The tribunal, EAT and Court of Appeal all rejected Ms Hainsworth's claim.

The EqA 2010 only requires an employer to make reasonable adjustments for an employee or job applicant who is disabled and does not oblige employers to make adjustments for a non-disabled employee who is in some way associated with a disabled person.

What to take away

In view of the Court of Appeal's decision in this case, employees with similar circumstances could seek to make a flexible working request, or depending on how others are treated, bring a claim for indirect sex discrimination under the EqA 2010.