Decision to withdraw offer of overseas posting did not amount to disability discrimination

Decision to withdraw offer of overseas posting did not amount to disability discrimination

Decision to withdraw offer of overseas posting did not amount to disability discrimination

In the recent case of Owen v AMEC Foster Wheeler Energy, the Court of Appeal held that an employer’s decision to withdraw the offer of an overseas posting on medical grounds did not amount to disability discrimination.

 

Background

Mr Owen worked as a chemical engineer for AMEC Foster Wheeler Energy (“AMEC”). He had a double below-the-knee amputation, type 2 diabetes, hypertension, kidney disease and was morbidly obese. At the request of one of AMEC’s clients, AMEC offered Mr Owen a 12-month posting to the UAE. Before the posting, he had to undergo a medical assessment and pass it to a certain level.

The doctor carrying out the assessment raised concerns about whether Mr Owen’s disabilities rendered him unfit for the assignment. Although the demands of the job were comparable to Mr Owen’s current role, the doctor considered that, given his medical history, there was a high risk of him needing medical attention overseas. Relying on the report, AMEC’s Operations Director informed Mr Owen that he could not take up the assignment. He did not believe the assignment would be in his best interests or consistent with the Company’s duty of care. 

Employment Tribunal Claims and Appeal

Mr Owen claimed that the withdrawal of the posting amounted to direct and indirect disability discrimination and a failure to make reasonable adjustments. The Employment Tribunal and Employment Appeals Tribunal dismissed his claims.

Court of Appeal decision

Mr Owen appealed to the Court of Appeal, alleging that the Tribunal had erred in its approach and that the reason he was not posted to the UAE was linked to his disabilities. The Court of Appeal dismissed Mr Owen’s appeal. 

The Court of Appeal held that, in relation to Mr Owen’s claim for direct discrimination, the Tribunal’s construction of the hypothetical comparator was correct in that an individual who was not disabled but was deemed to be at high risk would have been treated in the same way. The Court of Appeal did not agree with Mr Owen’s argument that AMEC’s reasons for deciding not to post him abroad (the results of the medical examination) were ‘indissociable’ from, or a proxy for, his disabilities. 

The Court of Appeal agreed that it was reasonable for the decision-maker to rely on medical evidence and that no reasonable adjustments could be made in the circumstances.

As to the Claimant’s claim for indirect discrimination, it was accepted that the requirement to pass a medical assessment to a certain level before being sent on an assignment was a provision, criterion or practice (“PCP”). The PCP was a proportionate means of achieving a legitimate aim in that individuals going on an assignment are fit to do so, their health risks are managed and the individual is not subjected to any health risks.

Comment

This is a sensible decision illustrating that it can be reasonable for an employer to not offer or withdraw the offer of an overseas assignment where medical evidence suggests that any such assignment might pose a risk to the employee’s health.

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