181: Withdrawing offer of overseas posting for employee with multiple health problems was not disability discrimination

In the recent case of Owen v AMEC Foster Wheeler Energy Ltd (AFWE) and another, 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.

Mr Owen has double below-knee amputations, type 2 diabetes, hypertension, kidney disease, heart disease, and morbid obesity. While working for AFWE as a chemical engineer, he was offered a 12 month posting to join a project management team in Dubai at the request of a client. Prior to the posting, Mr Owen was required to undergo a medical assessment with an external occupational health provider. This raised concerns about his fitness for the posting because of his medical history, poorly controlled diabetes, high blood pressure, and previous heart attack. Although the demands of the overseas role were comparable to Mr Owen’s UK role, the assessment concluded that there was a high risk of him needing medical attention whilst in Dubai. Relying on this report, Mr Owen was informed that he could not take up the posting due to these medical concerns, and because it would not be in his interests or consistent with AFWE’s duty of care.

Mr Owen brought claims of direct and indirect disability discrimination and failure to make reasonable adjustments, all of which were dismissed by the Employment Tribunal. The direct discrimination claim was rejected because the Tribunal found that an employee without Mr Owen’s disabilities who had been identified as a high medical risk would not have been treated any differently. In relation to indirect discrimination, it was accepted that the requirement to pass a medical assessment for the posting was a provision, criterion or practice (PCP) which could place Mr Owen at a particular disadvantage because of his disabilities. However, the Tribunal held that this PCP was a proportionate means of achieving the legitimate aim of ensuring that those who go on overseas assignment are fit to do so, health risks are properly managed, and employees are not subject to health risks due to the assignment. There were no other proportionate means of achieving that aim without undertaking a medical assessment, and Mr Owen’s assessment had been reasonably and fairly undertaken. The Tribunal also held that since a medical assessment was necessary, there was no reasonable adjustment that could have been made to avoid the substantial disadvantage of being required to undertake it. These findings were upheld by the Employment Appeal Tribunal (the EAT).

The Court of Appeal has now also rejected Mr Owen’s appeal. In relation to the direct discrimination claim, the Court agreed with the Tribunal’s approach of comparing Mr Owen to someone without his particular disabilities but deemed to be high risk. The medical assessment was a non-discriminatory reason for the decision to withdraw the offer of the posting. In addition, there was no error of law in the Tribunal’s approach to the reasonable adjustments and indirect discrimination claims. The company had shown that ensuring the health and well-being of employees was a legitimate aim, and that the PCP of passing the medical assessment was a proportionate means of achieving that aim.

This case shows that it may not be discriminatory for an employer to withdraw an offer of a secondment or placement where medical evidence suggests that the proposal could constitute a risk to the employee’s health. However, it is important to undertake a balanced risk assessment and to obtain appropriate independent medical advice in order to be able to back up this decision. It should be noted that Mr Owen has applied for permission to appeal to the Supreme Court.