Tue, 21 May 2019
Last week the Court of Appeal handed down this important judgment clarifying the legal position in respect of overseas assignments for disabled workers and holding that it was not discriminatory to refuse to allow a disabled worker to go on assignment due to concerns over risks to his health. Gemma Roberts had successfully represented the Respondents in both the Employment Tribunal and the Employment Appeal Tribunal.
Mr Owen, the appellant was employed by Amec and worked in the UK designing equipment for use an oil and gas refinery process in Dubai. Amec’s client in Dubai requested that Mr Owen and various employees be assigned to work in Dubai on the next stage of the engineering project. Mr Owen was disabled, he had double below the knee amputations, hypertension, kidney disease, ischaemic heart disease and morbid obesity. An independent occupational health doctor identified that Mr Owen had “an appalling medical history and seems unwilling to improve his health…” and was “… at high risk to need medical assistance whilst he is out there [in UAE]”. Mr Shaughnessy, a director of Amec and the Second Respondent in the proceedings, decided that Mr Owen should not be permitted to go on the assignment due to the concerns over the risk to his health.
The Court of Appeal upheld the decision of the ET and EAT in concluding that there was no direct discrimination contrary to s13 Equality Act as the ‘hypothetical comparator’, a person who was not disabled but was deemed to be at high risk, would have been treated in the same. In particular, the Court of Appeal rejected Mr Owen’s argument that the ‘hypothetical comparator’ had been wrongly formulated because the being at ‘high risk’ was indissociable from the disabilities themselves. Thus, Mr Owen contended that the ‘benign intention’ of his employer was irrelevant and that the law pertaining to direct disability discrimination should be consistent with the law relating to race and sex discrimination. In Ahmed v Amnesty International  ICR 1450 Amnesty had prevented Ahmed, who was of northern Sudanese origin, from moving to Sudan to work due to concerns for her safety due to ethnic origins).
The Court of Appeal held that Mr Owen’s case was not analogous to the situation that arose in Ahmed; in that case the decision not to permit the placement was explicitly due to the ethnic origin. In the present case, the decision was due to concerns over Mr Owen being of high risk from a medical perspective, which were protected characteristics per se. Further, disability is not a simple binary concept, health is not an irrelevant factor in a person’s ability to do their job and it the issue of indissociability cannot be readily translated into the disability discrimination context.
The Court of Appeal also dismissed Mr Owen’s arguments that the ET and EAT had wrong approached the question of indirect discrimination and failure to make reasonable adjustments. Mr Owen did not bring any complaint of ‘discrimination arising from’ under s15 Equality Act 2010.
This is an important decision which will provide comfort to employers who require their employees or workers to undergo occupational health reviews prior to assigning them on work placements. The case also emphasises however, that decisions based upon medical advice must be carefully considered and the medical advice relied upon must be scrutinised and explored to establish whether any risks identified can be reasonably reduced or controlled.