Hainsworth v Ministry Of Defence (Disability Discrimination : Reasonable adjustments)

The duty to make reasonable accommodation under Article 5 of Directive 2000/78/EC is directed to disabled persons in an employment or potential employment relationship with the employer required to provide it. It does not require an employer to adjust an employee’s work arrangements solely to enable that employee’s disabled relative, who is neither employed by nor applying to the employer, to undertake training.

Article 5 is also too broad and insufficiently precise to create, by direct effect, the freestanding right asserted in those circumstances. Associative direct discrimination is conceptually distinct and does not extend the reasonable-adjustment duty in this way.

The claimant worked for the Ministry of Defence in Germany. Her daughter, who had Down’s Syndrome, could not obtain appropriate schooling and training there. The claimant sought a transfer of workplace so that her daughter could undertake training.

She had withdrawn a proposed reasonable-adjustment claim and later sought to restore it by amendment. The Employment Tribunal refused the application and held, in any event, that a failure to make reasonable adjustments could not be claimed where the employee was not herself disabled. On a rule 3(10) application, the central proposed appeal ground was that Article 5 of Directive 2000/78/EC had direct effect against the respondent and protected an employee associated with a disabled person.

1. Application disallowed. The proposed appeal on the central ground was unarguable. The accommodation sought was for the daughter’s benefit, not to enable the claimant herself to perform or participate in her employment.

2. Article 5 of Directive 2000/78/EC must be read in its employment context. Reasonable accommodation enables a disabled person to obtain access to, participate in, advance in employment, or undergo training. Since the person obliged to provide accommodation is an employer, the provision is plainly related to employment, or prospective employment, with that employer. It does not impose responsibility upon an employer for disabled persons who are neither its employees nor applicants.

3. The breadth of the concepts of disability and reasonable accommodation did not assist the claimant. The proposition that all employers must make accommodation for disabled persons did not answer whether an adjustment may be required to an employee’s work for the benefit of a different person with no employment relationship with that employer.

4. Associative direct discrimination was distinguishable. A detriment may be imposed because of another person’s disability, but reasonable accommodation has a different purpose and analysis. [2008] ICR 1128 therefore did not support the asserted duty.

5. In any event, Article 5 was not unconditional and sufficiently precise to confer the claimed directly effective right. Its general language lacked the specific qualifications and limits found in the domestic reasonable-adjustments regime, including the statutory work-related links.

6. The fact that two other grounds had been allowed to proceed but stayed did not justify allowing this unarguable ground to proceed. The caution expressed in [2003] ICR 1244 did not displace the need to assess this ground on its own merits.

• Employment Appeal Tribunal: On a rule 3(10) application, the Tribunal refused permission for the central proposed appeal ground concerning direct effect and reasonable adjustments. Grounds concerning amendment and costs remained stayed for conciliation.
• Employment Tribunal: Employment Judge Kolanko, in written reasons dated 15 January 2013, refused the proposed amendment following withdrawal of the claim, dismissed the associative reasonable-adjustment claim for want of jurisdiction, and ordered costs of £1,200.