Testing the boundaries of disability discrimination
Guy Lamb, a Partner in our Leeds office, comments: Two cases this month have raised questions as to how far the protection of disability discrimination law should extend.
In Hainsworth v Ministry of Defence, the Court of Appeal rejected an attempt to increase the scope of so-called associative discrimination. In Coleman v Attridge Law the EAT held that protection from direct disability discrimination should extend to employees who are associated with a disabled person. Protection from direct associative discrimination was subsequently extended to all protected characteristics in the Equality Act 2010. In Hainsworth the claimant (supported by the Equality and Human Rights Commission as interveners) sought to argue that the duty to make reasonable adjustments also ought to extend to employees who are associated with a disabled person. Ms Hainsworth was employed as a civilian teacher attached to the British armed forces and required to provide her services in Germany. She asked to be transferred to the UK in order that her daughter, who has Downs Syndrome, could receive specialist education. When her request was rejected she brought the claim for disability discrimination claiming that it would have amounted to a reasonable adjustment to allow the transfer. The Court of Appeal held, however, that the duty to make reasonable adjustments only arises in respect of employees and prospective employees who are themselves disabled; there is no associative duty to make reasonable adjustments.
Is obesity a disability?
The Equality Act 2010 has already been interpreted as protecting employees who suffer from physical and mental conditions which result from obesity (in the 2012 EAT case Walker v Sita Information Networking Computing Ltd), but obesity has been rejected as a disability in its own right by the UK courts. However, in a case which was heard last month the ECJ was asked to determine a reference which could significantly extend the scope of disability discrimination. The case concerns an overweight Danish childminder, Karsten Kaltoft, who was sacked by his employer (the local authority) because it was deemed that he could not perform his duties due to his weight. Mr Kaltoft brought a disability discrimination claim. The Danish courts referred the question to the ECJ whether obesity should be regarded as a disability.
If the ECJ rules that obesity can be a disability, the impact could prove substantial for UK employers. The UK has one of the highest percentages of obesity in Europe; 64% of adults are classified as being overweight or obese. The Equality Act would need to be applied very differently if employers are required to treat obesity the same as any other physical or mental impairment. Employers would be prevented from treating an employee less favourably or dismissing the employee because of their weight. The most important impact, however, would almost certainly arise in the context of the employer’s duties to make reasonable adjustments to the workplace or working arrangements. Employers may be expected to provide specialist equipment or furniture, parking or other travel assistance and adjustments to sickness absence policies.
The latest statistics published by the Government indicate that the number of disability discrimination claims has fallen substantially following the introduction of fees, but as disability claims are among the most difficult and expensive to defend and awards can be higher than in other jurisdictions, any extension of the scope of disability discrimination would not be welcomed by employers.