The Court of Appeal (CA) has confirmed that the Equality Act is not to be interpreted as extending the duty on employers to make reasonable adjustments in respect of disabilities to employees who are not disabled but who are associated with a disabled person.
In our previous update, we told you about the European Court’s decision in 2008 that disability discrimination laws not only protect employees against direct discrimination by reason of their own disability, but also against discrimination by reason of the disability of (for example) a disabled close relative of the employee.
The Equality Act 2010 built on this decision and made associative discrimination unlawful in respect of most protected characteristics. However, the Act appeared to be quite clear that the duty on an employer to make reasonable adjustments was only engaged where the employee was disabled.
Against this backdrop the CA had to consider whether the Equality Act did not give proper effect to European law by not requiring reasonable adjustments to be made to a non-disabled employee’s job to accommodate the needs of a disabled relative.
In the current case, the Claimant (who worked for the MoD in Germany) had a daughter with Down’s Syndrome and requested that her employer allow her to relocate to the UK, where her daughter could access better care facilities.
The request was refused and the Claimant brought a claim that her employer should have made reasonable adjustments under the Equality Act due to her daughter’s disability. At tribunal and EAT, the Claimant’s argument was rejected and she appealed to the CA. The CA rejected the appeal on the basis that the Equal Treatment Directive could not be read to extend the duty to make reasonable adjustments to non-disabled employees ‘associated’ with disabled people.
Despite this judgment, employers should bear in mind that in respect of most other protected characteristics such as age, sex, race and sexual orientation, associative discrimination is still unlawful, as it is in the case of direct disability discrimination.
You can read the judgment here.