No duty to make reasonable adjustments for non-disabled employee caring for disabled child

No duty to make reasonable adjustments for non-disabled employee caring for disabled child


Author: Karen Fletcher

The Court of Appeal has confirmed that the duty to make reasonable adjustments only applies to an employee who is disabled and not where that employee is associated with a disabled person. We review the decision and what it means for employers.

Details of the case

In Hainsworth v Ministry of Defence [2014] the Claimant worked for the Ministry of Defence (MOD) based in Germany. The MOD provided facilities in Germany for the education of the children of personnel serving away from the UK; however the facilities did not cater for children with special needs and therefore the Claimant's daughter, who had Down's syndrome, could not be schooled there. The Claimant sought to argue that Article 5 of the EC Equal Treatment Framework Directive (Directive) imposed a duty on the MOD to make a reasonable adjustment for her, namely to transfer her to the UK or transfer her to an alternative role based in the UK, in order to enable her to meet her daughters schooling needs.

The Claimant drew an analogy with the leading case on associative disability discrimination, Coleman v Attridge Law [2008] which held that a person associated with a disabled person is protected from direct discrimination and harassment on grounds of disability (protection which was then mirrored in the Equality Act 2010).

However, the Court of Appeal rejected this analogy and held that the wording of the applicable legislation in relation to reasonable adjustments was 'plain and inescapable' and that the 'obvious and entire focus of Article 5 is upon provisions to be made by an employer for his disabled employees, prospective employees and trainees'. The Court also noted that the Recital to the Directive refers to 'the provision of measures to accommodate the needs of disabled people at the workplace.'

What this means for employers

The decision provides welcome clarification for employers as to how far the duty to make reasonable adjustments can extend, there having been no previous direct authority on the point, and avoids the duty to make reasonable adjustments from being widened.

The Court of Appeal noted that practically it would be difficult to extend the duty in this manner because there is 'no clue' in legislation as to how proximate the relationship between the employee and the disabled person would need to be for the duty to exist, not to mention the difficulties an employer would have in assessing what possible adjustments might be reasonable in the circumstances. This would undoubtedly be unclear and confusing for employers.

Having said that, it is good practice for employers to try to accommodate employees with caring responsibilities as far as practicable and employers should still be mindful of potential direct associative disability discrimination claims, particularly in situations where employees have high levels of absence due to caring for their disabled relatives.