There have been some recent interesting developments in relation to “associative discrimination”. Regular readers will be aware that individuals can claim protection under the Equality Act 2010 because of their association with a person who has a disability. A classic example would be where a father is not promoted in the workplace because he has a disabled child and the employer believes he could not devote the time to the new role within the organisation.
This protection was written into the Equality Act 2010 following the leading case of Coleman v Attridge Law. However, the protection only applies to direct discrimination (see the example above) or harassment. It does not cover the duty an employer may have in relation to making reasonable adjustments.
This may be set to change. The Equality and Human Rights Commission is intervening as a third party in the Court of Appeal to assist the Court in considering the case of Hainsworth v The Ministry of Defence. Dr Hainsworth worked for the Ministry of Defence. She was stationed in Germany and requested a transfer to the UK to enable her disabled daughter’s special educational needs to be catered for. The MOD refused the request and she therefore claimed unlawful disability discrimination.
She was unsuccessful at the Employment Tribunal and Employment Appeal Tribunal. The Commission is arguing that EU legislation could be read to confirm that an employer is under a duty to make reasonable adjustments in such circumstances, namely allowing Dr Hainsworth to come back to the UK and continue working for the MOD to ensure she could look after her disabled child’s education. Consequently the Equality Act should also be read in that light. Furthermore the Commission argues that the United Nation’s Convention on the Rights of those with Disability supports Dr Hainsworth’s case and that EU law should be interpreted in the light of the Convention. The Convention is a broad and purposeful document which has highly aspirational goals to ensure that disabled people are treated with the respect that they deserve and are afforded opportunities in the workplace and beyond.
The Convention has also recently been referred to in the UK tribunals to try and argue that individuals who may have two conditions, which separately do not satisfy the statutory test of disability but combined would do so, should also be given the protection of the UK law.
It is clear that areas which could be perceived as deficiencies in the level of protection for disabled people in the UK (or those covered by associative discrimination) are being highlighted and focused on by the Courts at the present time.
It is an interesting time for employers and they should be aware of emerging trends and developments so that they are not that exposed in the event that legislation (or case law) quickly moves on to broaden the level of protection for those with disability or those associated with people of disability.