We look at the case of Hainsworth v Ministry of Defence [2014] EWCA Civ 763, in which the Court of Appeal held that employers are not obliged to consider making reasonable adjustments to accommodate employees who have an association with a disabled person.

Background

Before the Equality Act 2010, anti-discrimination legislation did not protect employees against discrimination based on someone else's protected characteristic.  In the 2008 case of Coleman v Attridge Law and another C-303/06, the European Court of Justice held that this was contrary to the relevant EU Directive in certain circumstances.  In light of this decision, the EAT decided that the Disability Discrimination Act 1995 should be interpreted as protecting a non-disabled person from harassment if that harassment related to the disability of another person.

When the Equality Act 2010 was introduced, the definition of harassment was changed so that it expressly covered harassment on grounds of the protected characteristic of someone other than the person being subjected to the harassment.  Similarly, the definition of direct discrimination provides for associative discrimination to be covered.

However, the Equality Act states that reasonable adjustments must be made only insofar as they are required to assist the disabled person in question.  These provisions implement Article 5 of the Equal Treatment Framework Directive, which states that "employers shall take appropriate measures … 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".

Facts

Ms Hainsworth was employed by the Ministry of Defence (MOD) in Germany.  The MOD provided facilities to educate children of employees who worked outside the UK but Ms Hainsworth's daughter had Down's Syndrome and the provision of educational facilities by the MOD did not extend to the additional educational requirements of disabled children (ie those with "significant needs").   She could not therefore be schooled in the garrison where her mother worked.

In 2009 Ms Hainsworth requested a transfer to the UK to help her meet her daughter's needs.  This request was rejected and Ms Hainsworth brought a claim under the Equality Act 2010, alleging that the MOD should have made a reasonable adjustment of transferring her to the UK owing to her daughter's disability.

Employment tribunal decision

The employment tribunal rejected the claim.  It held that the Equality Act only requires an employer to make reasonable adjustments for an employee or job applicant who is disabled; it does not oblige an employer to make adjustments for a non-disabled employee who is in some way associated with a disabled person.  Ms Hainsworth appealed.

EAT decision

The EAT upheld the tribunal's decision, concluding that Ms Hainsworth's case was "unarguable".  She appealed to the Court of Appeal and was supported by the Equality and Human Rights Commission.

Court of Appeal decision

The Court of Appeal rejected Ms Hainsworth's appeal.

In the Court of Appeal both Ms Hainsworth and the Equality and Human Rights Commission conceded that, on a 'literal' interpretation of the relevant provisions of the Equality Act, Ms Hainsworth's daughter's disability did not entitle Ms Hainsworth to any reasonable adjustments.  However, they argued that the relevant EU Directive required the Court to interpret the Act so as to expand the 'protection' of the reasonable adjustment provisions to cover employees who were associated with somebody with a disability.  The Court of Appeal rejected this argument.

The Court stated that the "obvious and entire focus" of the relevant EU Directive was that employers were to make adjustments for their disabled employees, including prospective employees and trainees.  There was a contrast between these provisions and those concerning direct discrimination and harassment, which did require protection against associative discrimination.  The Court concluded that "The contrast is plain. Article 5 is limited so as to require measures only for the assistance of disabled employees or prospective employees of the employer in question.  I am afraid I consider that [Ms Hainsworth's lawyer's] ingenious attempt to escape the coils of this contrast, despite their elegance, is doomed to failure."

Comment

The decision seems to be one that did not overly trouble the Court of Appeal: the judgment is brief and unequivocal.  The statutory language is clear and, although it does not appear that any 'floodgates' argument was raised by the MOD, the potential impact on employers of a judgment in favour of Ms Hainsworth would have been such that this decision is likely to be warmly welcomed by employers.