In Hainsworth v Ministry of Defence the Court of Appeal has confirmed that the duty to make reasonable adjustments only applies where an employee or job applicant is disabled. It does not extend to an employee who is associated with a disabled person.
Mrs Hainsworth worked as a civilian employee attached to the British armed forces in Germany. Her daughter has Downs syndrome and is a disabled person within the meaning of section 6 of the Equality Act. Mrs Hainsworth requested a transfer to a location within the UK in order to be able to meet the special needs of her daughter. When this was refused she brought a claim for disability discrimination arguing that the transfer would have amounted to a reasonable adjustment and that a claim for associative disability discrimination could include a failure to make reasonable adjustments.
The EAT ruled that, although the duty on employers to make reasonable adjustments is a wide one, the wording of the Equality Act excludes claims of this nature where the employee or job applicant are not themselves disabled. In the Court of Appeal the argument focussed on the proper interpretation of Article 5 of the framework directive for equal treatment in employment and occupation (2000/78/EC). Article 5 states “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.” Mrs Hainsworth argued that if Article 5 gave her rights then the Equality Act should be interpreted so as to give effect to her EU rights.
The Court of Appeal robustly concluded that the entire focus of Article 5 is upon provisions to be made by an employer for disabled employees, prospective employees and trainees, noting the CJEU support of this straightforward interpretation in Coleman v Attridge Lawwhich limited the scope of Article 5 to disabled people. In fact in Coleman v Attridge Law the ECJ stated that the directive’s reasonable accommodation provisions‘ "would be rendered meaningless or could prove disproportionate if they were not limited to disabled persons only".
Employers may be comforted by this confirmation of the limit on rights under associative discrimination. However, although employees cannot bring claims for associative discrimination for an employer’s failure to make reasonable adjustments they may still face applications for flexible working (which from 30 June 2014 will be extended to all employees). Such applications will need to be handled appropriately to avoid exposure to claims for breach of the flexible working regime or of sex discrimination. Employers should also consider the employee relations aspects of handling such matters and the positive or negative impact on the workplace this can have.
