Employment and Immigration Law Update - Withdrawal of overseas posting due to health concerns


25 June 2019

The Court of Appeal has ruled on whether the withdrawal of the offer of an overseas posting due to health concerns amounted to disability discrimination. 

Owen v AMEC Foster Wheeler Energy Ltd and another [2019] EWCA Civ 822

Facts

The claimant had a number of significant health issues. He had double below knee amputations, type two diabetes, hypertension, kidney disease, heart disease and morbid obesity. He was offered the opportunity of a 12 month posting to Sharjah in the United Arab Emirates, subject to a medical assessment with an occupational health provider. The doctor who carried out the assessment raised concerns about whether the claimant’s disabilities rendered him unfit for the overseas assignment, due to a high risk that he would need medical attention during that period. The assignment was withdrawn on the basis that it would not be consistent with the company’s duty of care towards the claimant. The claimant brought claims for direct and indirect disability discrimination and a failure to make reasonable adjustments. His claims were dismissed by an employment tribunal and the Employment Appeal Tribunal. He appealed to the Court of Appeal.

Court of Appeal decision

The court has rejected the claimant’s appeal. In relation to direct discrimination, a person without the claimant’s disabilities who was identified as a high risk in a medical assessment would not have been treated any differently. The requirement to pass a medical assessment amounted to a provision, criterion or practice (PCP) for the purposes of indirect discrimination, but the court agreed that the PCP was a proportionate means of achieving a legitimate aim. The legitimate aim in this case was ensuring that those who go on an overseas assignment are fit to do so, and that individuals are not subject to health risks as a result of the assignment. The court agreed that there was no reasonable adjustment that
could be made to avoid the disadvantage resulting from the medical assessment.

Consequences

The risks associated with overseas travel will clearly vary enormously depending on the destination and the nature of an individual’s disability. In this case, the tribunal heard independent medical evidence from an occupational health doctor about the general medical risks in the UAE. This assisted the tribunal in concluding that the company’s decision was justified and not discriminatory. It is a reminder of the importance of considering the results of a medical assessment very carefully, and seeking further
clarification or advice where the results are in any doubt. The court also helpfully observed that the concept of disability is not a binary one and that it is not the case that an individual’s health is always entirely irrelevant to his or her ability to do a job.

This article is from the June 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at June 2019.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.