The Court of Appeal has upheld an Employment Appeal Tribunal’s decision that the duty to make reasonable adjustments only applies to disabled employees and applicants and does not cover a disabled person associated with an employee or applicant.
Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison to non-disabled comparators there is a duty to make reasonable adjustments to remove the disadvantage. The Court of Appeal’s decision confirms that this only applies to an employee, applicant for employment or a person who has notified the employer that they might be an applicant. The Equality Act definition does not extend to non disabled employees associated with a disabled person.
Therefore while there is protection for those associated with a disabled person from direct disability discrimination and harassment this does not extend to the duty to make reasonable adjustments.
In the case of Hainsworth v Ministry of Defence, Ms Hainsworth worked in Germany for the MOD and there were arrangements in place to provide facilities for the education of employee’s children. However, Ms Hainsworth’s daughter suffered from Down’s syndrome and the facilities were not designed for the education of children with specialist educational requirements.
Ms Hainsworth requested a transfer to the UK in order to access suitable education facilities for her daughter. Her request was refused and she brought tribunal proceedings claiming that it was a reasonable adjustment to transfer her employment to the UK in light of her daughter’s disability.
These arguments were rejected with the Court of Appeal confirming that it was apparent from the wording of the European Directive that reasonable adjustments were only meant to apply to disabled people.
Nick Benton comments “While this case confirms that employers do not have a duty to make reasonable adjustments in respect of disabled persons associated with an employee, employers may want to consider such matters in the context of employee relations. In addition, employers will still need to consider flexible working requests where an employee is trying to balance responsibilities for a disabled family member.“