Do you need to make reasonable adjustments for a non-disabled employee who cares for a disabled relative?
Short answer: no.
In the recent case of Hainsworth v Ministry of Defence, an employee based in Germany requested a transfer to the UK to allow her disabled daughter to access special training and education. When her employer refused, she raised a tribunal claim, alleging that her employer was obliged to make the reasonable adjustment of transferring her on account of her daughter’s disability.
However, her claim was rejected: the Court of Appeal held that her employer had no duty to make reasonable adjustments for a non-disabled employee, on account of their association with a disabled person. The Court confirmed that the duty to make reasonable adjustments only applies to employees or prospective employees who are themselves disabled.
But, a word of warning…
…you can be liable for direct discrimination and harassment in respect of a non-disabled employee on account of their association with a disabled person.
Employees are protected from direct disability discrimination i.e. being treated less favourably because of disability. In most cases, employees will complain about treatment relating to their own disability. However, direct discrimination can also occur where an employee is treated less favourably because of their association with a disabled person. So a non-disabled employee might bring a claim where they have been treated less favourably because they have a disabled child.
Employees are also protected against disability harassment, even if they are not disabled themselves.
In practice: managing employees who care for disabled relatives
Key concerns for employers are likely to be workforce retention and absence management. A Carers UK/You Gov Poll in 2013 showed that 2.3 million individuals left work to care and almost 3 million reduced working hours to care.
Even though there is no duty to make reasonable adjustments, if an employee is struggling to cope because of their association with a disabled person it would be good practice, and may assist with employee retention and absence management, for an employer to take reasonable steps to assist.
- Highlight the right to request flexible working. It might assist an employee to alter their hours, times or place of work either indefinitely or for a short period. Currently, employees caring for adults or children under the age of 17 (or 18 if disabled) have the right to request flexible working. This right will be extended to all employees with 26 weeks’ service from 30 June 2014.
- Highlight the right to time off for dependants, parental leave (where applicable) or other flexible or special leave offered by your organisation.
- Signpost employees to other sources of support, such as relevant charities, counselling services or employee assistance programmes.
- Provide training for managers in carer awareness and support.
- Take care to avoid direct discrimination or harassment because of a person’s association with someone who is disabled.