Owen v Amec Foster Wheeler Energy Ltd

Where an employer refuses an overseas assignment because occupational-health advice identifies a high risk that the employee will need medical assistance, direct discrimination is not established if a non-disabled comparator with the same medical-risk assessment would have been treated alike.

A requirement to meet a specified medical-assessment threshold before deployment may be justified where it is a proportionate means of managing health risks and preventing unnecessary assignment-related risk. In a reasonable-adjustments claim, the tribunal must identify the PCP, disadvantage and possible step. Further assessment concerns process, not itself an adjustment. If medical evidence supports the finding that no reasonable step could avoid the disadvantage other than non-deployment, there is no breach.

The claimant, a chemical engineer with bilateral below-knee amputations, diabetes and other conditions, was selected by a client for an assignment in Sharjah. The respondents declined to deploy him after occupational-health advice assessed him as at high risk of needing medical assistance overseas.

The Employment Tribunal at Reading dismissed the direct-discrimination claim unanimously. By majority, it also dismissed claims of indirect disability discrimination and failure to make reasonable adjustments. The claimant appealed, principally contending that the Tribunal had misunderstood the medical advice and had failed to conduct the required structured and proportionate assessments.

The central issue was whether the Tribunal had permissibly found that the medical-assessment requirement was justified and that no reasonable adjustment would avoid the identified disadvantage.

1. Appeal dismissed. The Employment Tribunal had reached permissible conclusions. Its unanimous dismissal of direct discrimination and its majority dismissal of the remaining claims disclosed no error of law.

2. For direct discrimination under section 13 of the Equality Act 2010, the Tribunal was entitled to select a hypothetical non-disabled comparator who had been assessed as at high risk of a medical emergency if deployed overseas. The information available to the respondents stated that the assignment presented that risk. The Tribunal could therefore find that the comparator would also have been refused deployment. The claimant consequently failed to show less favourable treatment because of disability.

3. On indirect discrimination, the applicable PCP was properly understood as a requirement to pass a medical examination or assessment to a specified level before an overseas assignment. The Tribunal had identified both that PCP and the claimant's disadvantage: his disabilities made him liable not to meet the required medical level and therefore not to be deployed. Its majority was entitled to find the requirement justified. It pursued legitimate risk-management aims and was a proportionate and necessary means of achieving them, following further enquiries and consistent occupational-health advice.

4. On reasonable adjustments under sections 20 and 21, the Tribunal had adopted the necessary staged approach. It identified the PCP and disadvantage and considered possible steps. A further or more detailed assessment concerned the decision-making process; it was not, of itself, an adjustment. The respondents had sought further medical input, and the Tribunal was entitled to find that no reasonable step could avoid the disadvantage once the medical evidence identified the high risk, save not deploying the claimant on the assignment.

• Employment Appeal Tribunal: Appeal dismissed from the Employment Tribunal sitting at Reading.
• Employment Tribunal sitting at Reading: Reserved judgment sent on 27 January 2017. The direct-discrimination claim was dismissed unanimously; the indirect-discrimination and reasonable-adjustments claims were dismissed by majority.