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Refusal to Make Adjustment for 'High Risk' Disabled Employee Was Fair

on Friday, 24 May 2019.

A disabled employee was not discriminated against when his international job posting was blocked after his medical assessment classed him as being 'high risk'.

Background - Owen v AMEC Foster Wheeler Energy Ltd and another

Mr Owen was a chemical engineer who was offered a posting to the United Arab Emirates. Mr Owen had type 2 diabetes, double below-knee amputations, hypertension, kidney disease, ischaemic heart disease and morbid obesity. A medical assessment into Mr Owen's fitness to undertake the posting concluded that there was a high risk that Mr Owen would require medical treatment abroad. The doctor highlighted that Mr Owen had poor control of his diabetes and that he had previously had a heart attack among the list of high risk factors. Mr Owen raised reasonable questions about the medical advice and the employer sought clarification from the doctor.

Having considered the medical advice, the employer informed Mr Owen that he was no longer able to take up the posting. The employer considered that it would not be in Mr Owen's interests or consistent with its duty of care to send him to the UAE. While the employer was aware that its decision could be detrimental to its business (as it would be disappointing UAE clients who had requested Mr Owen's placement), it considered that the company's duty of care to Mr Owen should be prioritised.

Mr Owen subsequently brought a claims of direct and/or indirect disability discrimination and a failure to make 'reasonable adjustments'.

The Employment Tribunal Decision

The Employment Tribunal rejected Mr Owen's claims:

  • In relation to the direct discrimination claim, the Tribunal concluded that a non-disabled employee who had also been identified as high risk following a medical assessment, but was not disabled ('the hypothetical comparator'), would have been treated the same as Mr Owen.
  • In relation to the indirect discrimination claim, it was accepted that the requirement for Mr Owen to pass a medical examination could result in a particular disadvantage for disabled employees. However, the Tribunal determined that this requirement was a "proportionate means of achieving the legitimate aim" and so the policy was not discriminatory.
  • In relation to the reasonable adjustments claim, it was accepted that the requirement for Mr Owen to pass a medical examination gave rise to the duty to make reasonable adjustments. However, the Tribunal determine that there was no 'reasonable' adjustment that could have been made.

Mr Owen appealed this decision to the Employment Appeal Tribunal and then to the Court of Appeal.

The Court of Appeal Decision

The main point of appeal was on the use of a hypothetical comparator in the direct discrimination claim. Mr Owen argued that his medical assessment was "indissociable" from his disabilities and so relying on the medical assessment was de facto discrimination. He submitted that whatever the benign motive of the employer may have been, there was an inherent link between the reason why it acted as it did, and his disabilities; in effect he argued that the employer's reasons for refusing his posting to UAE were a proxy for his disabilities.

The Court of Appeal disagreed. It determined that the appropriate comparator had been used. The court held that the concept of 'indissociability' (where an employee's treatment cannot be separated from their protected characteristic), which has been applied to other protected characteristics such as race or sex, does not readily translate to the context of disability discrimination. The difference is that a person's health can be relevant to their ability to do their job, whereas their race or gender would not be.

Best Practice

This case is useful reminder that even decisions based solely and directly on an employee's disability are not necessarily discriminatory.

In cases of direct discrimination, the key will be whether the disabled employee was treated less favourably than a hypothetical or real comparator. In cases of indirect discrimination, the employer is able to justify its decisions if it can show that they are a proportionate means of achieving a legitimate aim.

In this case, the Tribunal determined it was reasonable for the employer to rely on the medical assessment because not only was that assessment carried out by a relevant medical specialist - when reasonable questions were raised about that advice, the employer sought further advice and clarification from the medical expert.

For more information, please contact Helen Clayton in our Employment Law team on 0117 314 5457.

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