Owen v AMEC Foster Wheeler Energy Ltd & Anor

Direct disability discrimination requires a comparison with a person who does not have the claimant’s particular disability but who shares the claimant’s relevant circumstances and abilities, including an equivalent medical risk. A complaint about unfavourable treatment because of something arising from disability belongs under section 15 of the Equality Act 2010, which does not require a comparator. The reasonable-adjustments duty focuses on the objective practical outcome, not the employer’s reasoning process or consultation. An employment tribunal may uphold a medical-assessment requirement as indirectly discriminatory only if it is objectively justified by a legitimate aim and proportionate means, supported by evidence of the relevant medical and environmental risks.

The Claimant, a disabled chemical engineer, was selected by a client for a twelve-month assignment in Sharjah, Dubai. Following a medical assessment, the First Respondent decided not to deploy him because his multiple medical conditions created a high risk of medical emergency overseas.

The Employment Tribunal found unanimously that there was no direct disability discrimination. By a majority, it rejected the claims of indirect discrimination and breach of the duty to make reasonable adjustments. HHJ Eady QC dismissed the appeal in the Employment Appeal Tribunal on 1 June 2018. The central issues before the Court of Appeal were the proper comparator for direct discrimination, the structured approach to reasonable adjustments, and the justification of the medical-assessment requirement.

1. Appeal dismissed. The Employment Tribunal and the Employment Appeal Tribunal had made no error of law.
2. Direct discrimination. Sections 13 and 23 of the Equality Act 2010 require comparison with an actual or hypothetical person who does not have the claimant’s particular disability, while retaining the claimant’s other relevant circumstances and abilities. The comparator could therefore have the same relevant medical risk without having the claimant’s particular disability. As such a comparator would have been treated in the same way, there was no less favourable treatment. The Court applied High Quality Lifestyles Ltd v Watts [2006] IRLR 850 and Stockton-on-Tees Borough Council v Aylott [2010] EWCA Civ 910; [2010] ICR 1278.
3. Section 15 and proxy reasoning. The Claimant’s argument was in substance concerned with unfavourable treatment arising from disability and was apt for section 15, which does not require a comparator. It had not been pleaded. The proxy and indissociability reasoning in racial or sex discrimination cases, including Amnesty International v Ahmed [2009] ICR 1450, did not apply. Disability is not a simple binary characteristic, and health may legitimately bear on ability to perform work. No proxy for disability had been used.
4. Reasonable adjustments. Whether an adjustment is reasonable is a matter of fact and degree: Aitken v Commissioner of Police of the Metropolis [2011] EWCA Civ 582; [2012] ICR 78. The tribunal correctly identified the relevant PCP and disadvantage, and asked objectively what steps could avoid that disadvantage. The duty concerns practical outcome rather than the employer’s thought processes or consultation: Royal Bank of Scotland v Ashton [2011] ICR 632. The medical assessment was necessary and fairly conducted, follow-up occurred, and deployment without passing the assessment would not have been a reasonable adjustment.
5. Indirect discrimination. The Respondents had to show that the medical requirement was a proportionate means of achieving a legitimate aim. The evidence about the Claimant’s uncontrolled conditions, the medical risk rating of the destination, heat and humidity, and available medical facilities entitled the tribunal to uphold the requirement as objectively justified.

• Court of Appeal (Civil Division) — On 14 May 2019, dismissed the appeal from the Employment Appeal Tribunal.
• Employment Appeal Tribunal — HHJ Eady QC dismissed the Claimant’s appeal on 1 June 2018.
• Employment Tribunal — On 23 January 2017, found unanimously that there was no direct disability discrimination and, by a majority, rejected the claims of indirect discrimination and breach of the duty to make reasonable adjustments.