UK: Disability Discrimination: Blocking Of Internal Posting For Disabled Employee Was Not Disability Discrimination

Last Updated: 20 June 2019
Article by Nick Chronias, Ceri Fuller and Hilary Larter

An employee with multiple disabilities did not suffer disability discrimination when an overseas posting was blocked because there was a high risk he would need medical attention overseas.

The facts

Mr Owen is disabled, suffering from multiple conditions: he is a double below-knee amputee, has type 2 diabetes and also suffers from hypertension, kidney disease, ischaemic heart disease and morbid obesity. Mr Owen worked as a chemical engineer for Amec Foster Wheeler Energy Ltd ("Amec") and was among several employees who were requested by an important client to take up an assignment in Dubai. He completed a medical questionnaire and health assessment which raised concerns about whether, in light of his health, he was fit for an overseas assignment. Although the demands of the job were comparable with his UK role, the doctor thought that there was a high risk that Mr Owen would need medical attention during his time overseas, largely because of his medical history, poor control of his diabetes and blood pressure, and the fact that he had already had a heart attack. The decision was made not to allow Mr Owen to take up the posting. The director making this decision based it on the medical concerns, stressing that it would not be in Mr Owen's interests or consistent with the employer's duty of care to send him to Dubai. The director was aware that this decision might be detrimental to the business, but he considered that the company's duty of care to Mr Owen should be prioritised.

Mr Owen claimed that he had suffered direct and indirect disability discrimination and that Amec had failed to make reasonable adjustments.

In relation to direct discrimination, the employment tribunal used a hypothetical comparator, which was an employee without Mr Owen's disabilities who had been identified as high risk in a medical assessment. It found that such a hypothetical comparator would not have been treated any differently. Mr Owen had not therefore suffered direct disability discrimination.

The employment tribunal also found that Mr Owen had not suffered indirect discrimination. The requirement to pass a medical before being sent on international assignment was a provision, criterion or practice that could result in a particular disadvantage in consequence of Mr Owen's disabilities. However, this was justified as a proportionate means of meeting the legitimate aim of ensuring that those who go on an overseas assignment are fit to do so, that health risks are properly managed, and that individuals are not subject to health risks as a result of the assignment. The tribunal held that there were no other proportionate ways of achieving that aim without a medical assessment and that the assessment had been reasonably and fairly undertaken.

The employment tribunal also held that, since a medical assessment was necessary, there was no reasonable adjustment that could have been made to avoid the substantial disadvantage at which that assessment placed Mr Owen.

Mr Owen unsuccessfully appealed to the EAT, and then to the Court of Appeal.

In relation to the direct discrimination claim, Mr Owen argued that the employment tribunal's construction of the hypothetical comparator had been an error. He argued that no real comparator existed and that, whatever the benign motive of his employer might have been, there was a necessary and inherent link between his disability and the reason why the employer acted like it did (this reason being the outcome of the medical assessment). In effect, he argued, Amec's reasons were a proxy for his disability.

The Court of Appeal held that the employment tribunal's treatment of the hypothetical comparator was correct. It also held that it could not be said that Amec's reasons for acting as it did were a proxy for Mr Owen's disabilities. It commented that the concept of indissociability, which can be applied to other protected characteristics such as race or sex, does not readily translate to the context of disability discrimination because the concept of disability is not a binary one, and it is not the case that a person's health is always entirely irrelevant to their ability to do a job.

The Court of Appeal found that the tribunal's approach in relation to indirect discrimination was lawful and its conclusions were sound. It also found that the tribunal had not erred in its approach to reasonable adjustments.

What does this mean for employers?

Had this appeal been upheld, it would have been concerning for employers who, acting on medical advice and in the employee's interests, decide not to send disabled employees on overseas postings. The Court of Appeal's comments on indissociability in the context of disability discrimination claims provide useful clarity.

We understand that this case is being appealed to the Supreme Court.

Owen v AMEC Foster Wheeler Energy Ltd & Anor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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