Decision not to allow employee to take up overseas placement due to concerns over risk to his health not discriminatory
24 May 2019 #Discrimination
In the recent case of Owen v AMEC Foster Wheeler Energy Ltd and another, the Court of Appeal held that withdrawing the offer of an international placement due to concerns arising from the Claimant’s medical assessment did not amount to disability discrimination.
The Claimant was in poor physical health and suffered from hypertension, kidney disease, ischaemic heart disease, type 2 diabetes and morbid obesity. He also had double below-knee amputations. He was one of several employees requested by one of the Respondent’s key clients to undertake a 12-month assignment in Sharjah, United Arab Emirates.
Whilst the demands of the overseas placement were comparable to his role in the UK. The Claimant had to undergo a pre-assignment medical assessment. This highlighted a high risk of the Claimant requiring medical attention during his time abroad but did not conclusively deem him unfit for the posting. Based on the medical concerns, the Claimant was told that he would not be allowed to take up the posting. When explaining its reasons, the Respondent stressed that the placement would not be in the best interests of Claimant and to send him would go against its duty of care.
After his grievance was unsuccessful, he brought claims for direct and indirect disability discrimination and failure to make reasonable adjustments. His direct discrimination claim failed at first instance, with the tribunal finding that there were no less discriminatory alternatives to the medical assessment to achieve the legitimate aim of ensuring that those who go on an overseas assignment are fit to do so, that health risks are properly managed, and that individuals are not subject to health risks as a result of the assignment. His reasonable adjustments claim failed too. Since it was found that the medical assessment was necessary, there was no reasonable adjustment that could have been made to avoid the substantial disadvantage at which that assessment placed the Claimant. The EAT and Court of Appeal agreed, rejecting his appeals.
His direct disability claim faired no better as the Court of Appeal held that the hypothetical comparator was appropriate. It found that the tribunal had been entitled to conclude that a person who lacked the claimant’s disabilities but who was at a similar risk of needing medical attention overseas, would have been treated the same way. His argument that the Respondent’s reason for denying him the posting was indissociable from his disabilities also failed. In rejecting this, the Court of Appeal said that (1) “the concept of indissociability cannot readily be translated to the context of disability discrimination” because the concept of disability is not binary and (2) it is not the case that a person’s health is always entirely irrelevant to his or her ability to do a job.
Whilst the case provides welcome reassurance, it also serves as a reminder that decisions based on medical advice require careful consideration. For specific assistance in this area, please contact a member of our Employment Team on firstname.lastname@example.org
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