The Court of Appeal held it was not direct discrimination, and was justified on the facts, to refuse to send an employee with multiple health conditions to the United Arab Emirates.
The claimant was a disabled person with double below knee amputations, type 2 diabetes, hypertension, kidney disease, ischaemic heart disease and morbid obesity.
The employer decided not to send him on an assignment near Dubai ‘in the interests of the individual and recognising our duty of care to him’. This was after receiving occupational health advice that his assignment would be a ‘high risk’.
The claimant argued this was direct disability discrimination, saying the high medical risk which concerned the employer was indissociable from the facts constituting his disability. The Court of Appeal rejected this argument. If someone else with a medical illness or injury of the same gravity but not having his particular disability would have been treated no more favourably, direct discrimination was not established.
He was not claiming for discrimination arising from disability. However the court considered justification in the context of indirect discrimination. What seemed to be missing from the medical advice which the employers had received from OH was precisely why the assignment to Dubai would pose a higher risk for the claimant than that which he already faced on a day to day basis in the UK.
However the Court of Appeal was willing to fill the gap with evidence from another OH practitioner (who seems not to have examined the claimant) which was available to the tribunal. She said that if consulted at the time she would have wholeheartedly agreed with the employer’s decision.
In her view it was highly inappropriate to transfer someone with the extent of the claimant’s pathologies from a low to a medium risk country. Even if UAE were low risk, she would still not consider it sensible for the claimant to be sent there.
The case is Owen v Amec Fosters Wheeler Energy, www.bailii.org/ew/cases/EWCA/Civ/2019/822.html