Hainsworth v Ministry of Defence

Article 5 of the Council Directive 2000/78/EC requires reasonable accommodation for disabled employees, prospective employees and trainees. It does not require an employer to adjust a non-disabled employee’s employment for the benefit of a disabled associate. General social-policy principles and international instruments cannot expand clear wording where the identity and required proximity of the beneficiary would be uncertain. On the same basis, the wider interpretation could not support direct effect. The literal scheme of the Equality Act 2010 did not extend the reasonable-adjustment duty to the employee’s disabled daughter.

The appellant was a civilian employee working in Germany. She sought a transfer to the United Kingdom as a reasonable adjustment to accommodate the educational and training needs of her disabled daughter. The Employment Appeal Tribunal, by a decision of Langstaff J dated 16 July 2013 under Rule 3(10) of the EAT Rules 1993, held that the relevant ground of appeal disclosed no reasonable grounds.

The appeal concerned whether Article 5 of the Directive required accommodation for a non-disabled employee because of an associated person’s disability, and whether the Equality Act 2010 could be interpreted or read down accordingly, or whether Article 5 could be relied upon directly against the Ministry of Defence.

1. Appeal dismissed. Laws LJ delivered the judgment, with which Tomlinson and Briggs LJJ agreed. The appeal concerned whether Article 5 of the Council Directive 2000/78/EC supported the proposed adjustment.
2. Article 5 was directed to measures taken by an employer for disabled employees, prospective employees and trainees. Its focus was adaptation of the workplace to the disability. If the beneficiary could instead be another person, the provision gave no workable indication of who that person should be or what degree of association was required. The proposed interpretation was therefore legally uncertain.
3. Coleman v Attridge Law [2008] All ER (EC) 1105 supported the distinction. Direct-discrimination protection could apply to a non-disabled employee affected by a child’s disability, because the child’s disability was the cause of the treatment. Article 5, however, concerned accommodation specifically for disabled persons.
4. The court accepted that the Directive should, so far as possible, be interpreted consistently with the United Nations Convention on the Rights of Persons with Disabilities, as recognised in HK Danmark [2013] ICR 851. The Convention, the EU Charter and the European Social Charter were expressed in general terms and could not qualify Article 5’s plain meaning. Commission v Italian Republic C-312/11, particularly paragraph 62, tended against the appellant’s wider construction.
5. On the literal terms of the Equality Act 2010, the relevant statutory provisions referred to disabled applicants and employees, not an associated disabled person. The court also doubted that the wider interpretation could be read into the express provisions of section 20(3) and paragraph 5(1) of Schedule 8. Even if the appellant’s construction of Article 5 were correct, its open-ended beneficiary concept would make the provision insufficiently precise for direct effect. No reference under Article 267 TFEU was required because the Article 5 issue was clear.

• Court of Appeal (Civil Division): The court dismissed the appeal.
• Employment Appeal Tribunal: Langstaff J, President of the EAT, decided on 16 July 2013 under Rule 3(10) of the EAT Rules 1993 that Ground 2 disclosed no reasonable grounds for appeal.
• Employment Tribunal proceedings: The judgment records that HHJ Richardson had earlier considered the prospective appeal under Rule 3(7) of the EAT Rules 1993.