Disability Discrimination by Association Part 2
In Part 1 of this article I expressed the view that direct discrimination by reason of disability could occur even where the disability is not that of the person who is being treated less favourably, but instead is an attribute of someone associated with that person, e.g. their disabled child (“discrimination by association”). Thus, it is not lawful to treat someone less favourably in their application for a place merely because they have a disabled child any more than it is lawful to refuse a person a place merely because they themselves have a disability.
I concluded that “less favourable treatment” in this context might include refusing to allow an able bodied student to record lectures, when the reason for the request to be permitted to do so was to enable the student to care for a disabled child, on the footing that less favourable “treatment” is to be considered not necessarily as the specific act of withholding permission to record a lecture, but more broadly as “making lectures accessible”, “providing access to learning” etc., so that a refusal to permit recording could amount to making lectures inaccessible if that meant it was difficult for the mother to access lectures by reason of the disability of her child, though I accept that it could be argued either way.
I indicated that Part 2 of the article would consider whether there is also a positive duty on an HE or FE institution to make reasonable adjustments in favour of a student who is associated with a disabled person, such as the mother of a disabled child.
In one sense it might be said that permitting a student to record a lecture when not everybody would be allowed to do so in itself amounts to making an adjustment in favour of the student, but there is a distinction to be drawn between treating someone differently merely by not prohibiting them from doing something (recording a lecture), and treating them differently by making a positive adjustment in their favour (providing them with the recording equipment).
When subjected to proper analysis, the Act does not allow a student to insist on “reasonable adjustments” in the latter sense in order to accommodate the student’s needs in caring for a disabled child.
The requirement to make reasonable adjustments is dealt with in some detail in paragraphs 20 and 21 and Schedule 13 to the Equality Act 2010. Schedule 13 assists with the interpretation of paragraphs 20 and 21. Taking these provisions together no other interpretation is possible but that the disability under consideration is that of the person who is at risk of being discriminated against, not of some other associated person. Therefore, the unassuarable conclusion is that there is no duty to make adjustments so as to avoid the possibility of discriminating against someone by virtue of there being associated with a disabled person.
Thus there is no duty to provide a recording device to the student who is the mother of a disabled child and who needs to record her lectures so as to enable her to combine studying with looking after her child, nor is there a duty to provide her with any other assistance in caring for her disabled child.
About the author
Patricia is a Practising Consultant in the Dispute Resolution team.