The Equality Act 2010 allows direct discrimination claims to be raised based on detrimental treatment of a worker who is associated with someone who has a “protected characteristic.” For example, a worker may raise a claim for associative discrimination because their flexible working request to allow them more time to support their disabled child was refused.
The concept of associative discrimination was initially raised in the case of Coleman v Attridge Law and another  which involved an employee raising a claim for direct discrimination by her employer because of her association with her disabled son. The Employment Tribunal hearing the case made a reference to the European Court of Justice (ECJ) to determine whether associative discrimination is prohibited by the Equal Treatment Framework Directive. The ECJ ruled that the Directive does prohibit direct discrimination on grounds of disability in respect of a person who is not disabled but is the primary carer of a disabled child. This ruling was then set out in primary legislation in the UK (Equality Act 2010). Associative discrimination is therefore firmly established in law.
The Equality Act 2010 also imposes a duty on employers to make reasonable adjustments to help disabled job applicants, employees and former employees in certain circumstances. For example, this could involve building modifications to allow an employee in a wheelchair access to work premises. The recent case of Hainsworth v Ministry of Defence  saw an employee trying to establish that associative discrimination also applies to the duty on employers to make reasonable adjustments.
Ms Hainsworth was an employee of the British armed forces based in Germany. She had a daughter who is disabled and required specialist education and training facilities. Ms Hainsworth asked for a transfer to the UK as the facilities her daughter needed were not accessible to her via her employer’s scheme in Germany. When this request was refused, she raised a claim on the basis that this refusal was a breach of her employer’s obligations to make reasonable adjustments. The Employment Tribunal and the Employment Appeal Tribunal (EAT) held that the duty only applies to reasonable adjustments for the assistance of disabled employees or prospective employees i.e. the duty did not extend to those associated with the employee.
Ms Hainsworth appealed to the Court of Appeal who agreed with the EAT and said any attempt to stretch this to cover a disabled person associated with an employee is “doomed to failure”.
Employers will be relieved that this case was not successful. Continuing to stretch the interpretation of the Equality Act 2010 to include more duties on employers is not a move that will go down well. However, do remember that there can still be direct discrimination by association and key personnel in any company or organisation should be trained to recognise this risk.
Does your organisation need training on recognising types of discrimination, including associative discrimination, or do you need advice on a particular situation? We can help. Please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).