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For employers, balancing the duty of care towards employees with the obligation not to discriminate against individuals on the grounds of disability can sometimes be a challenging task. Employers will want to make sure they are sufficiently safeguarding their employee’s wellbeing without making decisions which fall foul which of the Equality Act 2010.

These were the issues in consideration by the Court of Appeal in recent case of Robert Owen v Amec Foster Wheeler Energy Limited and James Shaughnessy [2019] EWCA Civ 822.

Facts

Mr Owen was a chemical engineer for AFWE. A client of AFWE requested that Mr Owen take up a role in a project in the Sharjah, UAE. Mr Owen was a disabled person with a number of health difficulties. He had double below the knee amputations and type 2 diabetes, as well as hypertension, kidney disease, heart disease and morbid obesity. AFWE required employees to complete an occupational health questionnaire prior to deployment overseas, and when Mr Owen disclosed a number of his health issues on the form, he was referred for an occupational health assessment in line with AFWE’s policy. The OH doctor in his report raised concerns about Mr Owen being sent to the UAE. He stated that the transfer would be “high risk” given that Mr Owen had difficulty managing a number of his conditions and had already suffered one heart attack. When this was further questioned by AFWE, the OH doctor clarified that the heat and the medical facilities available in the UAE were the reason for the “high risk” rating. Mr Shaughnessy, AFWE’s Operations Director, made the decision that on the basis of the medical evidence Mr Owen should not be deployed to the UAE. He did so in the knowledge that this would upset both Mr Owen and the client, but considered that AFWE’s duty of care to Mr Owen outweighed these considerations.

Mr Owen raised a grievance and an appeal, neither of which were upheld, and he subsequently raised claims in the employment tribunal for direct disability discrimination, indirect disability discrimination, and a failure to make reasonable adjustments. Both the first instance tribunal and the Employment Appeal Tribunal (EAT) decided that no discrimination had occurred. Mr Owen appealed to the Court of Appeal.

Direct discrimination

The employment tribunal had considered whether Mr Owen had been treated less favourably than others would be treated, because he had the disabilities he had, and had decided that an individual who did not have the disabilities that Mr Owen had but who was also considered to be a medically “high risk” would have been treated the same way; therefore no direct discrimination arose.

In his appeal, Mr Owen argued that the fact that he was medically high risk was indissociable from the fact of his disabilities; he was medically high risk because he was disabled. However, the court rejected this argument. The simple fact that there was a causal link between the disability and the treatment complained about was insufficient to justify a finding of direct disability discrimination. The court noted that the individual with whom Mr Owen’s treatment was to be compared must not be materially different in their abilities and characteristics to Mr Owen, other than in relation to Mr Owen’s particular disability. However, even someone who did not have Mr Owen’s particular disabilities may be considered medically high risk – they may have other medical conditions or disabilities and these individuals would also not have been permitted to go in the circumstances.

The Court of Appeal noted that the argument of direct discrimination was ill-conceived, and that Mr Owen should instead have argued that he had been discriminated against because of something arising from disability under section 15 of the Equality Act 2010. Claims under this section do not require a comparison with how someone who does not share the Claimant’s disability would have been treated; instead there is simply a requirement to show that the treatment was unfavourable because of something arising from the disability unless this can be objectively justified by the employer.

Indirect discrimination and failure to make reasonable adjustments

It was accepted that the requirement to pass an occupational health assessment prior to deployment overseas was a “provision, criterion or practice” or “PCP” which caused individuals with the Claimant’s disabilities particular disadvantage. However, the Court of Appeal agreed with the ET and the EAT that safeguarding the health and safety of employees overseas was a legitimate aim. It also agreed that there were no reasonable adjustments possible which would have avoided the disadvantage. The medical assessment was necessary, and the employer had gone back to the OH doctor for further clarification rather than simply relying on the initial report. The medical evidence was considered to be a sufficient objective justification and therefore no indirect discrimination or failure to make reasonable adjustments had been established.

Comment

Mr Owen attempted to borrow an argument which has been used successfully in race and sex discrimination cases in the past, by asserting that not deploying him because he was classed as high risk was the same as not deploying him because he was disabled. An analogy used in the case was that of a swimming pool which allows free entry over retirement age. At the time, when men and women had different state retirement ages, this would have been the same as allowing free entry for men over 65 and women over 60, which would have amounted to direct discrimination on the grounds of sex against men. However, the Court of Appeal rejected this type of argument in disability discrimination cases, noting that these claims are inherently different. For one, disability is not a binary state; there are many different types and severities of disability and simply having a disability did not mean that an individual would be placed at high medical risk. Secondly, unlike race and sex, disability is capable of having an effect on a person’s ability to carry out their tasks. It is for this reason that the claim of “discrimination arising from disability” exists, but does not exist for any other protected characteristic, and is a form of claim that   is capable of objective justification by way of defence. In this case, however, it is likely that even a claim for discrimination arising from disability would have failed, as the court determined in relation to the indirect discrimination claim that there was sufficient objective justification to justify the employer’s decision.

This case also underlines the importance of clear and cogent medical advice. The case may well have had a different outcome if the employer had simply accepted the initial report without questioning why Mr Owen was considered high risk. Ultimately, it is the employer that makes decisions of this type, and it is not wise to unquestioningly rely on medical advice.

If you have any queries about the issue discussed above, please do not hesitate to contact a member of our Employment Team.

Annika Neukirch, Solicitor

Chambers Leading Firm 2019

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