Owen v AMEC Foster Wheeler Energy Ltd & Anor

The Court of Appeal dismissed the claimant's appeal against the Employment Appeal Tribunal and Employment Tribunal findings that the employer did not commit direct or indirect disability discrimination and was not in breach of the duty to make reasonable adjustments under the Equality Act 2010. The court held that a hypothetical comparator may be attributed the claimant's non‑disability characteristics (here a high medical risk) and that, on the facts found, a comparator assessed as "high risk" would have been treated in the same way. The employer's reliance on independent medical advice and the legitimate aim of protecting assignees and managing health risks rendered the medical screening requirement a proportionate means of achieving that aim. The tribunal did not err in law in its approach to the duty to make reasonable adjustments: the assessment of what adjustments were reasonable was a question of fact and degree and the employer had acted reasonably in relying on occupational health advice.

Background and parties: The claimant, a disabled chemical engineer with double below‑knee amputations, poorly controlled diabetes and multiple other conditions, was denied an overseas assignment to Sharjah/Dubai by his employer after an occupational health assessment concluded there was a high risk of medical emergency if he were deployed. He brought claims under the Equality Act 2010 for direct disability discrimination (section 13), indirect disability discrimination (section 19) and breach of the duty to make reasonable adjustments (section 20).

Procedural history: The claim proceeded to an Employment Tribunal (decision 23 January 2017) which rejected all discrimination claims (majority on indirect discrimination and reasonable adjustments). The Employment Appeal Tribunal (HHJ Eady QC, 1 June 2018) dismissed the claimant's appeal. Permission to appeal to the Court of Appeal was granted by Lewison LJ (16 July 2018).

Issues before the Court of Appeal:

• whether the tribunal erred in law in treating as a comparator a non‑disabled person assessed as high risk (direct discrimination under section 13);
• whether the tribunal misapplied the structured approach to the duty to make reasonable adjustments (section 20 and section 21) and impermissibly changed the PCP under consideration;
• whether the tribunal wrongly assessed justification for the PCP and therefore erred on indirect discrimination (section 19).

Court's reasoning: The court held that section 23 requires comparators to share the circumstances of the claimant other than the particular disability; tribunals may attribute a claimant's abilities to the comparator. Prior authorities (Watts and Aylott) support construing a comparator who lacked the specific disability but shared the relevant medical risk. The claimant's submission that the reason for the decision was "indissociable" from his disability was more appropriately the subject of a section 15 (something arising in consequence of disability) claim, which was not pleaded. On reasonable adjustments, the tribunal properly treated the question as one of fact and degree and was entitled to conclude that no reasonable adjustment would avoid the disadvantage of failing the medical assessment other than exempting the claimant from it, which was not reasonable. On indirect discrimination the tribunal could rely on the employer's legitimate aim of managing health risks and on occupational health evidence (including evidence before the tribunal) that deployment would pose increased risks; the PCP was a proportionate means of achieving that aim.

Relief sought: The claimant sought a finding of discrimination and remedy. The Court of Appeal dismissed the appeal and therefore no discrimination findings were substituted.

Appeal dismissed. The Court concluded the Employment Tribunal and Employment Appeal Tribunal did not err in law. A hypothetical comparator may be attributed the claimant's non‑disability characteristics (such as being "high risk"); the employer's decision was founded on independent medical advice and the legitimate aim of managing health risks made the PCP proportionate; and the tribunal correctly approached the duty to make reasonable adjustments as a question of fact and degree and permissibly found no reasonable step was available other than exempting the claimant from the medical requirement.

Employment Tribunal decision (ET) dated 23 January 2017: dismissed claims of direct and, by majority, indirect discrimination and breach of duty to make reasonable adjustments. Employment Appeal Tribunal (HHJ Eady QC) dismissed the claimant's appeal on 1 June 2018. Permission to appeal to the Court of Appeal granted by Lewison LJ on 16 July 2018. This Court (EWCA Civ) delivered judgment [2019] EWCA Civ 822 on 14 May 2019 dismissing the appeal.