Withdrawal of secondment offer to protect employee's safety was not disability discrimination


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The Employment Appeal Tribunal (EAT) has held that there had been no failure to make reasonable adjustments or discrimination for a reason related to an employee's disability where an employer withdrew a secondment offer following advice that it would risk the employee's safety in Judd v Cabinet Office.

The Cabinet Office withdrew a secondment offer of a job in Montenegro it had made to the claimant following advice that it would put her at high risk. The employee had suffered two significant health episodes the previous month and had gone to A&E on both occasions. In order to take up the secondment she needed to receive medical clearance, but the contractor (Healix) carrying out the assessment considered that she was high risk and should not travel to Montenegro for the time being. Meanwhile occupational health, who were not aware of the claimant's full medical history, assessed her as fit to travel if recommendations were followed, including arranging a local doctor, medical insurance, a health and safety risk assessment, and for wellbeing and contingency plans to be produced for medical evaluation and repatriation in an emergency.

Healix did not agree with the occupational health assessment and explained why their recommendations were insufficient.  There was not the same emergency services provision in Montenegro and a language barrier could be problematic.  The EAT found that the tribunal was entitled to find that the adjustments proposed were insufficient to protect the claimant's health, safety and wellbeing in Montenegro and that it was a conclusion open to it to reach.

Take note: The decision in Judd shows that, provided that proposed reasonable adjustments can be challenged as insufficient, it will be fine for an employer to decide not to implement them on the basis that a disabled employee will not be adequately protected. It helped here that the claimant herself admitted that she would continue to be at risk if she went to Montenegro and that the Cabinet Office was entitled to act so as to avoid that risk.

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