Health & Safety Key Points for Employers
In the case of Judd v Cabinet Office, the Employment Appeal Tribunal held the Cabinet Office had neither failed to make reasonable adjustments, nor discriminated on the grounds of disability by withdrawing a secondment offer.
The decision has been made following advice that the secondment would put the claimant's safety at high risk.
Judd v Cabinet Office Case
In September 2018, Ms Judd (the claimant) was offered a secondment to Montenegro. In July 2018 she had been the victim of a crime which had negatively impacted her health and well-being. In August 2018, the claimant had two significant health episodes which resulted in her attendance at A&E.
After being offered the secondment, the claimant had to undergo medical clearance which was carried out by an independent contractor, Healix. Healix advised the respondent that the claimant's health was at 'high risk' and she should not travel to Montenegro for the time being. This was the first time Healix had advised the respondent that an employee was high risk.
The claimant was subsequently assessed by the respondent's occupational health advisor (OH) but failed to provide her full medical history at this stage. OH considered the claimant fit to travel, but made various recommendations of steps which she should take to protect her health whilst on secondment. These included registering with a local doctor and taking out appropriate medical insurance. Healix disagreed with OH's recommendations, maintaining the claimant was high risk and that the measures suggested by OH would not be sufficient to mitigate the risk to the claimant's health should the secondment proceed. The respondent withdrew the secondment offer on the basis of Healix's advice.
Disability Discrimination Claims
The claimant brought claims of disability discrimination and failure to make reasonable adjustments. The question for the Tribunal was whether the respondent had acted disproportionately in withdrawing the offer and should have allowed the secondment to proceed, with OH's recommended safeguards in place. The parties agreed the claimant was disabled in law.
The Employment Tribunal and the EAT agreed that withdrawing the secondment was a proportionate means of the respondent achieving the legitimate aim of protecting the health and safety of staff working abroad. OH's recommendations would not have been sufficient to protect the claimant's health in an emergency - a fact which she herself admitted under cross examination. The respondent had therefore not failed to make reasonable adjustments by choosing not to allow the claimant to take up the secondment with OH's recommendations in place.
Take Away Points for Employers
This case demonstrates the importance of context and proportionality in dealing with disability related matters and proposed adjustments. The respondent was found to have acted proportionately in withdrawing the secondment taking into account factors such as the rarity of Healix's high risk classification, and also given the fact the secondment had been withdrawn temporarily, with the opportunity for it to take place at a later date following if possible.
In addition, this case serves as a useful reminder that proposed adjustments do not automatically have to be adopted. The 'reasonableness' of a proposed adjustment should be considered before an employer makes a decision on its implementation.