Withdrawal of overseas posting due to medical concerns was no disability discrimination
The Court of Appeal has held in Owen v AMEC Foster Wheeler Energy Ltd and anor that an employee with multiple disabilities did not suffer disability discrimination when, following a medical assessment, an offer of an overseas assignment was withdrawn.
The claimant, a chemical engineer, has a number of health issues, including type 2 diabetes, hypertension, kidney disease, heart disease and morbid obesity. Prior to a posting in the UAE he was required to undergo a medical assessment with a third-party occupational health provider. The doctor raised concerns about whether the claimant's disabilities rendered him unfit for the overseas assignment, and thought that there was a high risk of him needing medical attention during his time overseas. The respondent's operations manager informed the claimant that he would not be allowed to take up the posting as it would not be consistent with the respondent's duty of care to send him to the UAE. The claimant brought claims for direct and indirect disability discrimination and a failure to make reasonable adjustments. The tribunal rejected the direct discrimination claim, holding that an employee without the claimant's disabilities who had been identified as high risk in a medical assessment would not have been treated any differently. In relation to the indirect discrimination claim it was found that the requirement to pass a medical examination before being sent on an international assignment was a provision, criterion or practice (PCP) that could result in a particular disadvantage as a result of the claimant's disabilities. However, the PCP was found to be a proportionate means of achieving the legitimate aim of ensuring that those who go on overseas assignments are fit to do so and that health risks are properly managed. It was found that there was no reasonable adjustment that could have been made to avoid the substantial disadvantage to which the (necessary) assessment placed on the claimant. The EAT rejected the appeal, and so did the Court of Appeal.
The Court of Appeal held that the tribunal had been entitled to come to the findings that it did. On appeal the claimant argued that the reason that the respondent did not post him to the UAE was indissociable from his disabilities, claiming that the employer's reasons were a proxy for his disability. The Court disagreed, observing that the concept of disability is not a binary one, and that it is not the case that a person's health is always entirely irrelevant to his or her ability to do a job. As a result it thought that the concept of indissociability, which has been applied to other protected characteristics, does not readily translate to the context of disability discrimination.
Take note: The claimant in this case was unable to show that a non-disabled comparator with the same issues as those arising from his disability would not have been treated in the same way, and so his complaint of direct discrimination failed. He did not bring a claim for discrimination as a result of something arising in consequence of his disability where there only needs to be a loose causal connection between the disability and the "something arising", and there is no need for a comparator or a PCP. If the treatment is found to be a proportionate means of achieving a legitimate aim (as it was in this case) such a claim would be likely to fail.
This article is taken from HR Law – June 2019