An employer’s duty, to make reasonable adjustments for a disabled employee, does NOT extend to an employee who is “associated” with a disabled person. What does associated mean?

The Court of Appeal in Hainsworth v Ministry of Defence [2014] EWCA Civ 763 determined on 13 May 2014 that an employer’s duty, to make reasonable adjustments for a disabled employee, does NOT extend to an employee who is “associated” with a disabled person. This included the Employee’s 17-year old daughter.

At the material time, Ms Hainsworth was a teacher in the armed forces, stationed in Germany, and employed the Ministry of Defence. Ms Hainsworth herself was not disabled, however her daughter, Charlotte, has Down’s syndrome.

In 2011, Ms Hainsworth asked to be transferred to the UK in order to improve the care that could be provided to her daughter, but the MoD rejected her request. Ms Hainsworth brought a claim under the Equality Act 2010 (“the Act”), on the basis that the MoD should have made the reasonable adjustment of transferring her to the UK because of her daughter’s disability.

In the first-instance Employment Tribunal Ms Hainsworth’s claim was rejected. On appealed, the Employment Appeal Tribunal upheld the first tribunal’s decision.

Ms Hainsworth next appealed to the Court of Appeal, and the Equality and Human Rights Commission ( intervened, because the question to be decided by the Court could be of a broader impact and there was deemed to be substantial public interest in the outcome. Both Ms Hainsworth and the Commission argued that the combination of the Act and Article 5 of the Equal Treatment Framework Directive (“the Directive”) required an employer to make reasonable adjustments for an employee who is associated with a disabled person.

It was noted that a previous case (Coleman v Attridge Law (2008) C-303/06) has held that less favourite treatment due to association with a disabled person can amount to unlawful discrimination.

The Court of Appeal said of the submissions from Ms Hainsworth’s counsel, “”I am afraid I consider that [his] ingenious attempt to escape the coils of this contrast, despite their elegance, is doomed to failure.”

The judge distinguished the case from ‘Coleman’ by saying. “In Coleman the claimant was herself the victim of positive discrimination. Her child’s disability was simply the cause of it. Their exact relationship was in those circumstances not critical to proof of the cause. Here, however, the Appellant has to assert a duty upon the Respondent to act effectively for the benefit of her child. The proximity of the relationship between the Appellant and the disabled person (here her daughter) therefore becomes critical”. Ms Hainsworth’s appeal was unanimously dismissed.

This case provides a clear finding; however in light of its distinction from the facts of Coleman, it remains best practice for all Employers to do as much as possible to assist employees who are associated with disabled persons within the meaning of the Act. Otherwise, employers could still fall foul of the discrimination provisions. For example, employees struggling to cope because of family reasons can still request reasonable adjustments such as a flexible working arrangement, and female employees with sick or disabled children could bring a claim for indirect discrimination on grounds of gender.

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