UK: Fit Note – Refusal Of International Posting Not Disability Discrimination

Last Updated: 25 June 2019
Article by Stefan Martin and Ed Bowyer

The difficulties in succeeding in a direct disability discrimination claim are illustrated by the Court of Appeal decision in Owen v Amec Foster Wheeler Energy Ltd.

Mr Owen was a chemical engineer who had been working on a project. The client wanted him to transfer to Dubai to work on the second stage of the project. Candidates for overseas assignments were required to undertake a medical assessment. However, Mr Owen's various medical conditions, including poorly controlled diabetes, renal impairment and heart disease, meant that his assignment to an overseas location was viewed as high risk and he was not deployed. He claimed direct disability discrimination, indirect discrimination and failure to make reasonable adjustments. All claims failed in the tribunal and EAT and Mr Owen appealed to the Court of Appeal.

The Court of Appeal rejected his appeal. This was not a case of direct discrimination because a hypothetical comparator with the same medical risk would have been treated in exactly the same way, even if he or she did not have the same disabilities as the claimant. It was not enough for there to be a causal connection between the disability and the less favourable treatment for a direct discrimination claim to succeed; the claimant still had to show that he had been less favourably treated than someone else in comparable circumstances. The essence of his claim was that he had been unfavourably treated because of something arising from his disability, but he had not brought that claim.

In relation to the reasonable adjustments claim, it was common ground that requiring Mr Owen to pass a medical examination before being sent on an international assignment was a PCP that placed him at a disadvantage. However, there were no reasonable adjustments that could have been made to avoid the disadvantage. Mr Owen's medical conditions being what they were, a medical assessment was necessary and the procedure followed was fair and reasonable.

Finally, in the context of the indirect discrimination claim, the employer was able to show that the PCP was objectively justified. Although the employer had not explained to the employee at the time why his posting to Dubai would pose a greater risk for him than remaining in the UK, this evidence was available at the tribunal. Medical evidence showed that the transfer from the UK to Dubai would be from a low risk to a medium risk country, taking into account a variety of health factors including environmental risks. That would have been inappropriate, particularly because the medical conditions were poorly controlled. As such, the refusal to transfer Mr Owen was a proportionate means of achieving the legitimate aims of ensuring that those sent on a global assignment were fit to do so, that health risks were properly managed and that individuals were not subjected to health risks because of an assignment.

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