In the case of Ms V Judd v Cabinet Office (EA-2020-000468-AT) the Employment Appeal Tribunal (“EAT”) upheld an Employment Tribunal (“ET”) decision which said that there was no disability discrimination arising out of the employer’s withdrawal of a secondment opportunity in Montenegro on grounds of risk to an employee’s health. The unfavourable treatment (in withdrawing the secondment) was, in the circumstances, a proportionate means of achieving a legitimate aim to protect the Claimant’s health, safety and wellbeing.
In July 2018, the Claimant, Ms Judd, was a victim of a crime which left her with severe health issues, resulting in two A&E admissions in August 2018. It was not disputed that the Claimant was disabled within the meaning of the Equality Act 2010.
In September 2018 the Claimant was granted a place on a secondment in Montenegro subject to medical clearance. In assessing whether to grant medical clearance, an independent contractor, Healix, compared the medical needs of the Claimant to the availability and quality of medical care in Montenegro. The report did not clear the Claimant for Secondment; it identified a lack of a “joined up service” with UK healthcare, a risk that healthcare professionals in Montenegro would not have access to the Claimant’s medical records and a further risk that the Claimant would not be able to communicate effectively with healthcare professionals there. For these reasons, the report identified the Claimant as “high risk”. The employer withdrew the secondment offer.
The Claimant, relying on an occupational health (“OH”) report, sought to argue she was fit for secondment provided reasonable adjustments were implemented, but the Claimant had not disclosed her recent medical history to the OH advisor.
The crux of the case advanced by the Claimant was that the Respondent had acted disproportionately by withdrawing the secondment opportunity instead of allowing her to take the secondment with appropriate mitigations to protect her from the risk. However, the ET found that none of the mitigating factors or adjustments suggested by OH would have properly protected the Claimant’s health and safety. Withdrawing the secondment, therefore, was a proportionate means of achieving the legitimate aim of protecting her health and safety. No lesser action would have achieved the same.
On appeal, the EAT stated that any adjustments related to disability must be reasonable. The likelihood of an adjustment benefitting the employee, and the extent of that benefit, are factors among many which potentially fall for consideration under the head of reasonableness. Here, the adjustments would not have benefitted the Claimant because her health and safety would have remained at risk. Indeed, on the Claimant’s own admission she would be at risk if she went on the secondment. It was therefore, acceptable for the employer to withdraw the offer of the secondment as a means of mitigating that risk. The appeal was dismissed.
It is important that disability issues connected with employment are assessed on an individual, case-by case basis. Here, the particular facts meant that adjustments were not sufficient to protect the employee properly, and thus, the employer’s actions were proportionate. However, given a slightly different set of facts, the same actions may have been deemed to be discrimination on the grounds of disability.