Aleksandra Traczyk explores the recent case Owen v AMEC Foster Wheeler Energy Ltd and another where the Court of Appeal ruled that an employee with multiple disabilities did not suffer direct disability discrimination when his employer withdrew an offer of overseas assignment after a medical assessment identified that he was highly likely to require medical attention while abroad.
Mr Owen was employed by AMEC as an engineer. In 2015, an offer to send him on an overseas assignment was withdrawn because his disabilities gave rise to a high risk of medical implications and he brought claims against AMEC.
In this case the claimant’s disabilities were severe. He had two below-knee amputations, type-2 diabetes and suffered from kidney and heart problems. AMEC offered him a 12-month posting to the United Arab Emirates but prior to departure, he had to undergo a medical assessment. A third-party provider was instructed to carry out the assessment and the doctor raised concerns over whether Mr Owen’s disabilities rendered him unfit for the overseas assignment. Although the demands of the job were comparable to the claimant’s existing role in the UK, the doctor thought there was a high risk of Mr Owen requiring medical attention while abroad. Based on these medical concerns, AMEC withdrew the offer of the assignment stressing that it would not be in Mr Owen’s interests or consistent with AMEC’s duty of care to post him overseas.
Mr Owen objected and brought claims against AMEC in the Employment Tribunal, asserting direct and indirect disability discrimination and a failure to make reasonable adjustments.
His indirect disability discrimination claim failed, with the Tribunal finding that there were no less discriminatory alternatives to the medical assessment to achieve the legitimate aim of ensuring that those who go on overseas assignments are fit to do so. The Tribunal also held that since the assessment was necessary, there was no reasonable adjustment that could have been made to avoid the substantial disadvantage at which the assessment placed Mr Owen.
Crucially, the Tribunal rejected the direct disability discrimination claim on the basis that an employee without Mr Owen’s disabilities but identified as being at high risk of requiring medical attention while abroad, would have been treated in the same way.
This was surprising since other cases involving protected characteristics, such as race, have succeeded on similar facts. In the case of Amnesty International v Ahmed, it was held that a woman of Sudanese origin who had not been appointed by her employer to a post in Sudan due to concerns over impartiality and health and safety, was directly discriminated against by her employer on the basis of race. These reasons were found to be a proxy for the protected characteristic of race irrespective of the employer’s motive.
Mr Owen appealed to the Court of Appeal and raised an equivalent argument to that in Amnesty International v Ahmed. However, the Court held that in Mr Owen’s case, the employer’s reasons were not a proxy for his disabilities. It said that the concept of disability is not a binary one; there are many different types and severities of disability and simply having a disability did not mean that an individual would be placed at high medical risk. For those reasons, disability could not be considered in exactly the same was as other protected characteristics, such as race or sex.
This decision provides some reassurance for employers who require their employees to undergo medical assessments prior to posting them abroad. However, it is also an important reminder that decisions based on medical advice require careful consideration.