Under the Equality Act 2010, all employees who suffer from a disability have a right to request that adjustments are made so that as far as is reasonably possible, the difficulties that their disabilities cause them do not impact on their ability to do their job. These adjustments could be providing the employee with specialised equipment, allowing employees to take rest breaks or anything else that a disabled worker would need to ensure that they are able to carry out their duties and have the same opportunities as non-disabled workers. Any employer who disregards such a request without a good reason would be in breach of the Act.
A completely unrelated provision in this anti-discrimination legislation also provides that employers can be found to have discriminated against employees who are not themselves disabled, but who are being treated unfavourably because they have an association with someone who has a disability, or indeed any other protected characteristic such as race, sex or religion for example. An example of this could be dismissing an employee because they are married to someone who practices a particular religion or making insensitive and upsetting comments to someone about their child’s disability.
But what happens when these issues overlap?
If it is possible to discriminate against someone by association then could this be done by not making reasonable adjustments? This point has been clarified in the recent ruling of Hainsworth v Ministry of Defence. In this case, held in the Employment Appeal Tribunal, the Claimant was the mother of a 17 year old girl who had Down’s Syndrome. The mother requested that her employer relocated her to the UK as there were no schools which met the needs of her disabled daughter in Germany where she was working at that time. After considering the Equal Treatment Framework Directive, the EU legislation which the UK’s Equality Act implements, it was decided that employers only have the obligation to make reasonable adjustments for the benefit of the employee. This is because the Directive refers specifically to employees in the context of making reasonable adjustments. Extending the protection to employees’ family members was therefore decided to be beyond the scope of the Directive.
While Hainsworth v Ministry of Defence may appear on the face of it to be quite a novel case, the effects of this ruling are likely to be very far-reaching. It will no longer be possible for employees with caring responsibilities to bring claims against employers who refuse to make adjustments which would enable them to care for disabled relatives. While all employees have the right to make a request to work flexible hours, there is no obligation on the employer to meet this request and no doubt the deciding factor will usually be business related.
If you feel that you have been treated unfairly at work and would like advice about your employment rights, our discrimination team can be contacted on 01616 966 229.
By Lucy Hallett, litigation executive in dispute resolution