No failure to make adjustments ‘by association’

14 July 2014

In Hainsworth v Ministry of Defence, the Court of Appeal considered an employee who was not herself disabled, but who had a daughter with Down's syndrome. She requested a change of work location to enable her daughter to access specialist education and training facilities. Her request was refused. She claimed that this amounted to a breach of the statutory duty to make reasonable adjustments for disabled persons, contained in s 20 Equality Act.

However, the Court of Appeal agreed with her employer that the duty was only owed to disabled employees or prospective employees, and any attempt to stretch this to cover a disabled person associated with an employee was "doomed to failure". This was because s. 20 Equality Act was based on Article 5 of the European Equal Treatment Directive which states 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."

 

This is clearly limited to giving rights to employees and prospective employees alone.

The earlier case of Coleman v Attridge Law held on very similar facts that claims of associative discrimination can apply to direct discrimination claims. However, direct discrimination claims are based on Article 1, not Article 5, of the European Directive and the general principle of equal treatment. This, as the European Court said in Coleman, is intended to apply not only to a particular category of person but by reference to the ‘protected characteristics’ (which include disability as well as sex, race etc.) generally.

Points to note:

  • There are only two discrimination claims that relate specifically to disability – the duty to make reasonable adjustments and discrimination ‘arising from’ disability. This decision confirms that only disabled people can bring these two claims. Employers should also remember that both of these claims can only be brought when the employer knows, or ought reasonably to know, of the disability.

  • However, for other discrimination claims – and in particular direct discrimination and harassment – remember that it is possible to be found liable for discrimination against an employee who does not himself possess the ‘protected characteristic’. Discrimination may be ‘by association’ with someone who does have the characteristic, or ‘by perception’ – being wrongly perceived to have the characteristic. It need only be ‘related to’ the characteristic. So in English v Thomas Sanderson, the claimant who was not gay, and whose colleagues knew he was not gay, could claim harassment because he was the subject of homophobic banter.