Associative Discrimination

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The Problem

Discrimination by association is a hard concept to understand; harder still when the issue of reasonable adjustments is thrown in to the mix as it was in Hainsworth v Ministry of Defence (2014).

In this case the Court of Appeal explored whether there is a duty on an employer to make adjustments for the employee, even if the employee was not disabled themselves but associated to a disabled person.

The Principle

An employee with a disability can require their employer to make reasonable adjustments to help them overcome a substantial disadvantage which they experience before, during or after their employment. The employer must take reasonable steps to identify where reasonable adjustments can be made to remove the disadvantage, provided such steps are not disproportionately burdensome on the employer.

Mrs Hainsworth made a request to transfer her job with the MoD from Germany to the UK in order to better care for her disabled daughter.  This request was rejected.  Mrs Hainsworth brought a claim under the Equality Act 2010 that the MoD should have made the reasonable adjustment of allowing her to transfer.

The Court of Appeal held that employers are required to make reasonable adjustments only for disabled employees and job applicants.  European and domestic legislation offers protection against “associative discrimination” but not an additional duty in terms of reasonable adjustments on the basis of association.

The Practice

Thus an employee is unable to require their employer to make reasonable adjustments to their own circumstances on the basis of their association with a disabled person.  However, employers may consider such requests as an employee relations issue and deal with them in this light.  Employers should also be mindful of other avenues through which employees could pursue related issues, such as indirect sex discrimination, flexible working requests or even constructive dismissal.

For more information, help or advice please contact Tim Davies on 0191 211 7927.