Confronting the care penalty: the case for extending reasonable adjustment rights along the disability/care continuum

Abstract

Informal caring for adults with disabilities is a source of unacceptable disadvantage in employment, finances, social inclusion, and health; here termed the ‘care penalty’. This penalty can be appropriately tackled through equality law, making care a ground for unlawful discrimination. Carers are not adequately protected from indirectly discriminatory disadvantages by other grounds such as sex and disability. Nor are carers adequately protected by carer-specific provisions such as the UK right to request flexible working. This paper argues that a reasonable adjustment right should be available to carers. It challenges the model of reasonable adjustment as a special right, over and above other non-discrimination measures, so restricted to persons with disabilities. Instead, it is here argued that reasonable adjustment is a compromise – a lesser measure adopted to reduce the duties arising from protection from indirect disability discrimination. Once viewed as a compromise, its extension to carers becomes practicable, revealing that disability and care form a continuum, along which each of us dip in and out during our lives. The looming ‘care crisis’ stemming from demographic change means that states have a significant financial incentive to make work compatible with increasingly common care duties.

Keywords:

• Informal care
• discrimination grounds
• indirect disability discrimination
• reasonable adjustment
• flexible working
• reconciliation
• normal working life

Acknowledgements

Many thanks for the insightful and constructive comments of Helen Stalford and Michael Dougan (Liverpool Law School). The usual disclaimer applies.

Notes

1. Stimulating legislative action; the Americans with Disabilities Act Amendments Act of 2008, s. 2 (a)(4) specifically names Sutton as a trigger for amendment.