Refusing overseas posting because of medical concerns not disability discrimination


4 mins

Posted on 20 Jun 2019

An employer that decided not to send an employee with multiple disabilities on an overseas posting after a medical assessment identified that he was high risk had not directly discriminated against him. The employer’s reason for not sending him was not his disability but the fact a medical assessment identified him as high risk. This was separate from his disability and was not disability in disguise. Employers will only lose a direct disability discrimination claim if disability is the reason why they treated the employee less favourably, although an employee could also claim discrimination arising from disability.  

The Court of Appeal also ruled that the employer had not indirectly discriminated against the employee and had not breached its duty to make reasonable adjustments.   

Employer refuses overseas posting after medical assessment

Mr Owen has double below-knee amputations and type 2 diabetes. He also suffers from hypertension, kidney disease, heart disease and morbid obesity. He works as a chemical engineer. A client requested that he work on a project for 12 months in the United Arab Emirates.      

Mr Owen had a medical assessment with an external occupational health provider in accordance with company policy for overseas assignments. The doctor raised concerns that his disabilities made him unfit for the overseas assignment.  Although the job demands were similar to his existing role in the UK, the doctor thought there was a high risk that he would need medical attention during his time overseas. The employer decided not to allow Mr Owen to take up the overseas posting.  

Employment tribunal rejects disability discrimination claims  

Mr Owen claimed direct and indirect disability discrimination and failure to make reasonable adjustments.  

The employment tribunal rejected his direct discrimination claim. It ruled that his employer had not treated him less favourably. It would have treated anyone else identified as high risk but who did not have his disabilities in the same way.  Also, the reason his employer refused to send him overseas was not his disability but the outcome of the medical assessment. 

The employment tribunal also rejected his indirect discrimination and reasonable adjustments claim.  The employer’s requirement that he pass a medical assessment before an overseas posting was justified. As a medical assessment was necessary, there were no reasonable adjustments the employer could make.  

Court of Appeal dismisses employee’s appeal 

The Employment Appeal Tribunal rejected Mr Owen’s appeal and he appealed to the Court of Appeal. 

The tribunal had to consider how the employer would have treated someone else without Mr Owen’s disability whose circumstances were otherwise the same or not materially different. Mr Owen argued “being at high risk” was part of his disability and so the tribunal should not have taken that it into account when making the comparison. He also argued that the outcome of the medical assessment, which was why the employer refused to send him overseas, was disability in disguise.  

The Court of Appeal rejected his arguments and ruled that the employment tribunal had been correct to find that his employer had not directly discriminated against him.    

It also agreed with the tribunal that his employer had not indirectly discriminated against him or breached its duty to make reasonable adjustments.  

Comment 

Unusually, the employee in this case did not claim discrimination arising from disability. This is the more usual claim to bring where an employee is arguing the reason their employer treated them as they did was connected to their disability. In discrimination arising from disability claims, the employee has to show that their employer treated them unfavourably. They do not have to show that their employer treated them less favourably than a comparator. However, employers can defend these claims if they can show that their actions were a proportionate means of achieving a legitimate aim.

As the defence in a claim for discrimination arising from disability is the same as in indirect discrimination claims, Mr Owen would not have succeeded on this basis either.  

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