354: Do employers have to make adjustments even when they have no prospect of helping the employee?
This is an important case for employers, but it is very much based on its own facts.
In Judd v Cabinet Office, the EAT has ruled that there was no disability discrimination where an employer withdrew a secondment offer abroad after receiving advice that it would put the employee’s health and safety at risk.
The Cabinet Office offered Ms Judd a secondment in Montenegro. Just prior to this, she had been the victim of a crime which adversely affected her health, resulting in two attendances at A&E. An external health assessor, Healix, advised the Cabinet Office that Ms Judd was too high risk to travel to Montenegro due to concerns about the availability and quality of the healthcare there. However, the Cabinet Office’s own occupational health advisers advised that Ms Judd was fit to travel so long as certain protective measures were put in place, including registering with a local doctor, following a well-being plan, and ensuring contingency planning for repatriation if necessary. Healix disagreed that these adjustments were sufficient to mitigate the risks and confirmed its assessment that Ms Judd should not travel. The Cabinet Office withdrew its secondment offer on the basis of their advice. Ms Judd subsequently brought claims of discrimination arising from disability and failure to make reasonable adjustments.
There was no dispute that Ms Judd met the definition of a disability under the Equality Act 2010. However, her claims failed because the Employment Tribunal found that the adjustments suggested would still leave her at risk, which she had conceded in her evidence. It was therefore reasonable and proportionate for the Cabinet Office to withdraw the secondment offer in order to achieve the legitimate aim of protecting her health and safety.
On appeal, the EAT agreed with the Tribunal’s decision. Given all the circumstances, withdrawing Ms Judd’s secondment offer was proportionate, particularly as there were no lesser measures which would have achieved the aim of protecting her health. The EAT noted that Healix very rarely classified employees as high risk, and that the secondment had only been withdrawn temporarily, with an opportunity for Ms Judd to take it up at a later date if her health improved. The EAT agreed that the adjustments she asked for were not reasonable because she would still potentially be at risk. For example, there was a lack of joined-up services within Montenegro itself, and between Montenegro and the UK, so medical staff there would not have access to her medical history, and language difficulties might hinder effective communication in the event of an emergency.
This decision illustrates that employers are not required to adopt adjustments which have no prospect of alleviating the employee’s disadvantage. A Tribunal will take all relevant factors into account when considering proportionality, including the likelihood of an adjustment benefitting the employee and the extent of that benefit. In this case, it was clear that none of the protective adjustments suggested would have achieved the aim of protecting the employee’s health, safety and well-being.