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Disability discrimination by association

According to the Equality Act 2010, an employer is prohibited from treating a person less favourably than it would treat other people, “because of a protected characteristic”.  The protected characteristics are prescribed and include (but are not limited to) race, sex and disability.

Similarly, an employer and its representatives are prohibited from harassing a person, by engaging in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either (i) violating the person's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Usually, a person who alleges that they have been subjected to direct discrimination or harassment will be complaining that they have been treated less favourably because of their own protected characteristic, e.g. their own disability.  However, an employer may also discriminate if it treats a person less favourably as a result of a protected characteristic of a third party associated with the person so treated.  For example, an employer may discriminate against an employee if it treats that employee less favourably than it would treat other employees because that employee has a disabled child or if an employee is subjected to office “banter” relating to a homosexual relative.  Discrimination based on a third person’s protected characteristic is known as “associative discrimination”.

The scope of associative discrimination was expanded by the Equality Act 2010.  Its full extent is not entirely clear.

In the recent case of Hainsworth v Ministry of Defence (2014), the Court of Appeal examined the extent to which associative discrimination might apply in relation to an employer’s duty to make reasonable adjustments.  Where (i) a provision, criterion or practice of an employer; or (ii) a physical feature of the employer’s premises; or (iii) the absence of an auxiliary aid; places a disabled person at a substantial disadvantage in relation to relevant matter in comparison to a person who is not disabled, the employer is obliged to take such steps as are reasonable to avoid that disadvantage.

H was a teacher in the MOD who was required to provide services at a garrison in Germany.  Her daughter is disabled.  The garrison provided educational facilities for children of MOD personnel but did not have facilities for children with special educational needs.  H’s daughter could not be educated within MOD’s facilities.  She sought a transfer to the UK in order to meet the needs of her daughter.  Her request was refused.  H therefore sought to establish that MOD had a duty to make reasonable adjustments in respect of her daughter’s disability; it had failed to do so and was therefore liable for associative discrimination.

The Court of Appeal decided that the provisions of the Equality Act 2010 relating to the employer’s obligation to make reasonable adjustments only applied in respect of actual or prospective disabled employees of the employer.  Primarily for reasons of uncertainty, it concluded that the obligation to make reasonable adjustments could not apply to benefit of an associate of an employee or applicant for employment.  Comment was also made that in other forms of associative discrimination, it is the claimant that suffers less favourable treatment by his/her association with a disabled person, whereas in this case, the claimant did not herself suffer a disadvantage, she was seeking to remedy a disadvantage suffered by her daughter.

This appears to us to be a difficult distinction to make and a somewhat unsatisfactory result overall.  H suffered a disadvantage in that she was unable to make appropriate educational provision for her disabled daughter as a result of her transfer to Germany.  Whilst on this occasion a remedy was not available under the aspects of the Equality Act 2010 relating to the duty to make reasonable adjustments, similar cases could be successful if the treatment afforded to the employee falls foul of direct discrimination or harassment provisions. 

For further information on the issues raised in this article, please contact Helen Wyatt on 020 7925 8083 or by email at helen@spencer-wyatt.com.

+44 (0)20 7925 8080 info@spencer-wyatt.com