The Court of Appeal has held that an employer did not discriminate in withdrawing an offer to post a disabled employee overseas following a medical assessment which found the employee fit in terms of UK occupational health law

But at high risk of needing emergency medical assistance if assigned overseas.

Background law

Direct disability discrimination occurs where, because of a disability, an employer treats a person less favourably than another (s.13, Equality Act 2010 (EA)). Just like any other form of direct discrimination, it cannot be justified. To claim direct disability discrimination, a claimant must demonstrate that they have been treated less favourably than a real or theoretical comparator whose circumstances are not substantially different to their own (s.23, EA). Where a claimant is disabled, the comparator may be have a different disability to that of the claimant or not be disabled at all.

Indirect disability discrimination occurs where an employer applies an apparently neutral provision, criterion or practice (a PCP) which puts persons of the claimant's disability at a particular disadvantage and also puts the claimant at that disadvantage and where the disadvantage cannot be objectively justified. Objective justification requires an employer to demonstrate that there was: (i) a legitimate aim that corresponded to a real business need (costs savings alone is not sufficient); and (ii) the PCP was a proportionate means of meeting that aim i.e. it was reasonably necessary and there were no less discriminatory means available.

Where someone is disabled under the EA, employers are required to make reasonable adjustments to any elements of the job which place a disabled person at a substantial disadvantage compared to non-disabled people.

Facts

Mr Owen (the Claimant), who is disabled under the EA, worked as a chemical engineer for an international company (Amec) which routinely sends employees on foreign secondments. The Claimant has double below-knee amputations, type 2 diabetes and suffers from hypertension, kidney disease, heart disease and obesity.  

When a group of employees, including the Claimant, were requested by a client to take up work on an assignment in Dubai, Amec sent them to their occupational health providers for a medical assessment. A doctor in Amec's occupational health team judged that, although the Claimant was fit for the assignment in terms of UK occupational health law, he was at a high risk of needing emergency medical assistance if assigned overseas because of his "appalling medical history", which included inadequate control over his diabetes and blood pressure, and the fact that he had previously had a heart attack. 

The Claimant unsuccessfully challenged Amec's refusal in an internal grievance procedure and brought claims of direct and indirect discrimination and failure to make reasonable adjustments in the Employment Tribunal. 

Employment Tribunal

The Employment Tribunal (Tribunal) rejected the Claimant's direct discrimination claim, finding that a comparator without the Claimant's disabilities who had also been identified as high risk in a medical assessment would not have been treated any differently. As such, the Tribunal was satisfied that the medical assessment was a non-discriminatory reason for the decision not to send the Claimant on the assignment.

On indirect discrimination, the Tribunal accepted that the requirement to pass a medical assessment to a certain standard before being granted the assignment was a PCP that could result in a particular disadvantage for someone with the Claimant's disabilities; but went on to find that it was a proportionate means of achieving a legitimate aim in this case.  This is because the medical assessment ensured that employees who go on overseas assignments are fit to do so, that health risks are properly managed, and that employees will not be vulnerable to health risks because of the assignment. The Tribunal found that there were no other proportionate methods of achieving that aim and the medical assessment had been completed reasonably and fairly.

Whilst the Tribunal accepted that Amec had a duty to make reasonable adjustments, it was satisfied that, as a medical assessment was necessary, there was no other reasonable adjustments that could have been made to avoid the substantial disadvantage faced by the Claimant.

The Claimant appealed to the Employment Appeal Tribunal (EAT) but the EAT upheld the Tribunal's decision. The Claimant appealed to the Court of Appeal (CA).

Court of Appeal

The main substance of the Claimant's appeal was in relation to the direct discrimination claim, stating that this formed the "heart of the appeal".  

In particular, the Claimant argued that when finding that there was no less favourable treatment because of disability, the Tribunal had wrongly focused on Amec's motivation for refusing the overseas assignment, rather than on the reason itself, which was the conclusion of the medical report (and which, the Claimant argued, was, therefore, "indissociable" from the facts surrounding the Claimant's disabilities). However, the CA found that the concept of indissociability cannot readily be translated to the context of disability discrimination, because it is not always the case that a person's health is always entirely irrelevant to their ability to do their job (which is different to other protected characteristics, like sex or race, for example).  

The Claimant also argued that the Tribunal had been mistaken in their construction of a hypothetical comparator as "a person without a disability, who had been assessed by a medical practitioner as being of "high risk" to send on the assignment". At the CA, the Claimant submitted that, in reality, there was no real comparator in this case at all.

The CA also dismissed this ground of appeal, finding that the Tribunal had been entitled to construct a hypothetical comparator and attribute to it the characteristics which it did and which excluded the Claimant's particular disability. The CA found that the argument that there was no comparator was not suitable in the circumstances, and, if that was to be pleaded, then the Claimant should have brought a claim under s.15 of the EA (discrimination arising from disability), which only requires there to have been "unfavourable treatment" and does not require a comparator.

Ultimately, the CA held that the Tribunal and EAT were correct to find that there was no direct discrimination in this case, because a hypothetical comparator with the requisite medical risk would have been treated in the exactly the same way, even if they did not have the Claimant's particular disability.  

The Claimant's other grounds of appeal were that the Tribunal had not considered the failure to make reasonable adjustments claim properly (by not assessing this in light of the correct PCP) and that the Tribunal had not properly assessed the proportionality test for the indirect discrimination claim. 

The CA upheld the Tribunal's finding that the requirement to pass a medical examination to a certain level before being sent on an overseas assignment was the relevant PCP which placed the Claimant at a substantial disadvantage. However, the CA also upheld the Tribunal's finding that there was no other reasonable adjustment which Amec could make to avoid that disadvantage. The Tribunal had appropriately focused on the question of reasonableness. Amec had acted on the basis of independent medical advice throughout the process and could not be criticised for doing so and the Tribunal could not be criticised for finding this process reasonable.

On indirect discrimination, the EAT had appreciated the Claimant's concern that there was a bit of a gap within the original medical advice as to precisely why the assignment to Dubai would pose a higher risk for the Claimant than that which he already faced on a day to day basis in the UK.  However, the CA could not ignore the fact that there was evidence before the Tribunal from a doctor employed by Amec as Head of Occupational Health for Northern Europe and the Confederation of Independent States (but who had not been involved in the medical assessment) as to the general medical risks in the United Arab Emirates who did, in substance, provide the objective justification required to show that the PCP in this case was a proportionate one for meeting a legitimate aim.  

That doctor had stated that "..if I had been consulted at the time, I would have wholeheartedly agreed with the decision that there were serious concerns with his health and that the Claimant was "high risk…" and that, in her view, it was highly inappropriate to transfer somebody with the extend of the Claimant's pathologies from a low risk country, like the UK, to a medium risk country, like Dubai, especially when some of those conditions were not yet until control. Whilst the Tribunal itself did not refer to that doctor's evidence in the section of its decision which addressed the claim for indirect discrimination, it was clearly aware of it, as it expressly referred to it at other parts of its judgment. Therefore, the CA was satisfied that the ET had not fallen into error when assessing this part of the claim.

Comment

This decision is reassuring for employers who require their employees or workers to undergo occupational health reviews prior to sending them on secondments or work placements.  However, it's also a reminder that decisions based upon medical advice must always be carefully considered and that employers should still examine any medical advice relied upon to explore whether any identified risks can be reasonably reduced or sufficiently managed before taking a decision.  

The case also highlights the distinction between a direct discrimination claim under s.13 EA (which requires a comparator), and discrimination due to something arising from a disability under s.15 EA, which only needs a vague causal link between an individual's disability and whatever 'arises'. Although a claim under s.15 may seem easier for claimants to plead (as no comparator is needed), employers can objectively justify such treatment if they can show that the treatment was a proportionate means of meeting a legitimate aim.  Here, the Claimant did not bring a claim under s.15 EA, but Amec would have most likely justified it in the same way as they did with the indirect discrimination claim, by relying upon independent medical advice that their treatment was reasonable, and that their process met a legitimate aim, which was the health and wellbeing of their employees.  

Nevertheless, this may not be the end of the line for this case, as we understand that the Claimant has now applied for permission to appeal to the Supreme Court.

This article was drafted by Lucy Flanagan, Paralegal 

Owen v AMEC Foster Wheeler Energy Ltd [2019] EWCA