The Supreme Court – FS Cairo (Nile Plaza) LLC v Lady Christine Brownlie
Hainsworth v Ministry of Defence
The Court of Appeal held that an employer had no duty to make reasonable adjustments for a non-disabled employee who was “associated” with a disabled person.
Ms Hainsworth was employed by the MoD, based in Germany. Her daughter has Down’s syndrome. Although the MoD provided education facilities, for children of employees who worked outside the UK, they were not designed for people with “significant needs”. Ms Hainsworth therefore requested a transfer to the UK, where her daughter could be schooled. The MoD rejected the request. Ms Hainsworth brought a claim under the Equality Act 2010, arguing that the MoD was obliged to make reasonable adjustments for her, because of her daughter’s disability.
The tribunal and the EAT rejected Ms Hainsworth’s case and found that the Equality Act 2010 only requires an employer to make reasonable adjustments for an employee or applicant who has a disability. It does not oblige employers to make reasonable adjustments on the grounds of “associative” discrimination.
Ms Hainsworth appealed to the Court of Appeal and the Equality and Human Rights Commission intervened. They both argued that Article 5 of the Equal Treatment Framework Directive (the European law which the Equality Act implements) requires an employer to make reasonable adjustments for an employee associated with a disabled person. However, the Court of Appeal found that Article 5 only requires adjustments to be made for disabled employees, prospective employees or trainees and the duties under the Directive “would be rendered meaningless or could prove disproportionate if they were not limited to disabled persons only”. In addition, the Court of Appeal made reference to the leading case on associative discrimination (Coleman v Attridge Law), in which the ECJ drew a distinction between direct discrimination and the duty to make reasonable adjustments and made it explicit that although associative discrimination applies to direct discrimination, it does not apply to the duty to make reasonable adjustments.
Employers should take note that although this case confirms that employees/prospective employees will not be able to bring claims against employers for a failure to make reasonable adjustments in relation to a person to whom the employee is “associated”, an employee who has caring responsibilities could look to bring a claim for direct discrimination. Such employees could also make a request for flexible working, which would need to be considered carefully and handled appropriately in order to avoid a potential discrimination claim.
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