Associative discrimination and the duty to make reasonable adjustments
The Court of Appeal’s recent decision in Hainsworth v Ministry of Defence is good news for employers, confirming that the duty to make reasonable adjustments does not extend to an employee who is associated with someone who is disabled. The duty to make reasonable adjustments continues to apply where an employee or a job applicant is disabled.
In this case, Mr Hainsworth made a request to transfer her place of work from Germany to the UK. This was to assist her in meeting the special needs of her daughter who has Downs Syndrome and disabled within the meaning of the Equality Act. This request was refused. Mrs Hainsworth brought a claim for disability discrimination on the basis that granting her request would have been a reasonable adjustment which her employer should have made for her due to her association with her disabled daughter. The Court of Appeal rejected this argument.
Whilst this decision confirms that employees cannot bring claims for reasonable adjustments based on associative discrimination, employees are still protected under the Equality Act from harassment on grounds of the protected characteristic of someone other than the person being subjected to the harassment. Similarly, the definition of direct discrimination extends to associative discrimination.
It is also worth noting that now that the right to request flexible working has been extended to all employees with at least 26 weeks service, employers are likely to see more applications made as a result of an associative protected characteristic, with disability being the most obvious. Whilst employers will not be required to make reasonable adjustments in those situations, care should be taken when considering flexible working requests to avoid breaching the regulations or facing discrimination claims.