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24 October 2014

Discrimination by association – no duty to make reasonable adjustments

The Equality Act 2010 established that associative discrimination is unlawful, subject to the same exceptions that generally apply. Under the Act, direct discrimination occurs when the reason for one person being treated less favourably than another is one of the protected characteristics covered by the Act. This means that protection is afforded to someone who does not themselves have the protected characteristic but has suffered less favourable treatment because of their association with someone who does, for example an employee with caring responsibility for a disabled child or for an elderly or disabled relative.

In Hainsworth v Ministry of Defence (MoD), the Court of Appeal had to consider whether an employer's duty to make reasonable adjustments to accommodate the needs of a disabled employee also extends to making adjustments for an employee who has caring responsibility for a disabled person.

Dr Hainsworth worked for the MoD as a teacher at a British armed forces base in Germany. She had asked to transfer to an establishment in the UK because specialist schooling for her 17-year-old daughter, who has Down's syndrome and is therefore a disabled person for the purposes of the Act, was not provided by the MoD in Germany. When her request was refused, she brought a claim for disability discrimination on the grounds that a transfer constituted a reasonable adjustment to enable her daughter's needs to be met and a claim of associative discrimination could be made in such circumstances.

Whilst the Equality Act clearly limits an employer's duty in this regard to employees and job applicants, Dr Hainsworth claimed that the right to an adjustment to her employment in order to accommodate her disabled daughter's needs was given to her by the 'reasonable accommodation' terms of Article 5 of the EU Equal Treatment Directive, and that a purposive approach should therefore be taken when interpreting the Act.

The Employment Tribunal and the Employment Appeal Tribunal (EAT) found that Article 5 did not apply outside the employment relationship. In the EAT's view, reasonable accommodation is recognised as being intended to enable a person to 'have access to, participate in, advance in employment or to undergo training'. Given that the person who must make the adjustments is the employer, the scope of Article 5 is clearly limited to employment by that employer.

The Court of Appeal dismissed Dr Hainsworth's appeal, finding that her interpretation of Article 5 was 'unsustainable'. In the Court's view, its terms relate specifically to employees who are themselves disabled and extending the duty to make reasonable adjustments to accommodate the needs of an employee's disabled relatives would be 'a step too far'.

Contact Kathryn Fielder by telephone on 01753 278659 or by email at employmentlaw@bpcollins.co.uk for advice on any aspect of discrimination law.

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