CA finds revoking offer after medical assessment was not discriminatory
Friday 24th May 2019
The CA, in Owen v AMEC Foster Wheeler Energy Ltd & anor, concluded that withdrawing an overseas posting following a medical assessment did not constitute disability discrimination.
Mr Owen, a chemical engineer, was offered a 12-month posting to the UAE. Prior to the posting he underwent a medical assessment, following which the offer was revoked. Mr Owen is a double amputee and suffers from diabetes, hypertension, kidney disease, ischaemic heart disease and morbid obesity. The assessment questioned whether Mr Owen was fit for the assignment, as his disabilities gave rise to a “high risk” of him needing medical attention while overseas.
Mr Owen brought claims for direct and indirect discrimination along with failure to make reasonable adjustments. The ET, rejected the claim of direct discrimination, holding that an employee without disabilities identified by a medical assessment as being “high risk” would have been treated in the same way. The medical assessment was “a complete non-discriminatory reason” for denying the posting.
The ET accepted that having to pass a medical examination was “a provision, criterion or practice” that could result in a particular disadvantage. However, it considered that the PCP was a proportionate means of achieving the legitimate aim of ensuring fitness to go overseas and proper management of health risks. While the PCP gave rise to the duty to make reasonable adjustments, the medical assessment was necessary and there was no reasonable adjustment that could have been made to avoid the disadvantage Mr Owen faced. The EAT agreed.
Mr Owen appealed to the CA arguing that the ET had not approached the hypothetical comparison correctly and the reason for denying him the posting (the conclusion reached by the medical assessment) was indissociable from the facts constituting his disabilities.
The CA found that the ET’s approach when identifying the hypothetical comparator was consistent with existing guidance and did not include reference to Mr Owen’s particular disabilities. The CA considered that the concept of indissociability often applied to other protected characteristics was not easily applied to a non-binary concept such as disability. A person’s health is not always entirely irrelevant to the ability to do a particular job.
The CA also held there was no error in the approach taken to the question of reasonable adjustments and reliance on medical advice was considered reasonable. The CA also held that the ET had been entitled to rely on evidence from a doctor, not included in the assessment of Mr Owen, as to the general increased medical risk for Mr Owen in the UAE, when concluding that requiring a medical assessment was objectively justified.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.