- within Employment and HR topic(s)
- with Senior Company Executives, HR and Inhouse Counsel
- in United States
- with readers working within the Property industries
Hainsworth v Ministry of Defence in 2013 established that there is no requirement on employers to make reasonable adjustments for dependents of an employee. As the law stands, there is no requirement to make associative reasonable adjustments.
Mr Justice Langstaff decided on a Rule 3(10) application in Hainsworth that the MOD were not required to make adjustments for Dr Hainsworth's daughter, who had Down's Syndrome. Dr Hainsworth was posted in Germany, and her daughter could not find appropriate schooling there. Dr Hainsworth asked to move her place of work. The MOD declined the adjustment.
An application for a Rule 3 (10) hearing in the EAT is a formal request for an oral hearing to renew an application that has been refused permission to appeal. This hearing allows the appellant to present their case again and argue why the appeal should be allowed to progress to a full hearing.
More recently, the issue of reasonable adjustments for dependents has come under consideration again in the Court of Justice of the European Union in case C-38/24 Bervidi.
The case was referred from the Italian Supreme Court of Cassation and concerned a station operator who repeatedly asked her employer to place her in a role with fixed working hours based on the need to care for her son, who had complex needs arising from disability. Some provisional adjustments were granted, but the employer refused to make them permanent.
The Italian court referred the case to the CJEU because it had doubts about the interpretation of EU law as regards protecting employees from indirect discrimination where an employee cares for a minor child with severe disabilities while having no disability themselves.
The CJEU held that the prohibition of direct discrimination on grounds of disability under the Framework Directive (Council Directive 2000/78/EC) on equal treatment in employment and occupation also extends to an employee who is subject to discrimination because of the assistance they provide to their disabled child.
The directive seeks to combat all forms of discrimination on the grounds of disability.
The court held that in order to protect the rights of persons with disabilities, in particular the rights of children, the general principle of non-discrimination includes indirect discrimination by association so that equal treatment in employment is guaranteed to their parents and so that parents are not subject to unfavourable treatment in their work in connection with their children's situation. An employer is therefore obliged to provide reasonable accommodation to the extent that it does not impose a disproportionate burden on the employer.
The case was remitted back to the Italian court of Cassation to determine whether the request in the present case did represent a burden on the employer. The reasonableness of the adjustment is still a valid consideration.
The courts of England & Wales are not obliged to follow the decision of the CJEU, but it is only a matter of time before a case is brought in the domestic courts in relation to care needs for a disabled dependent, and we wait to see whether the law in Hainsworth will remain unchanged.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
