The case of Owen v AMEC Foster Wheeler Energy Ltd considered the issue of disability discrimination in the context of Health and Safety concerns.
Mr Owen suffered from a number of health issues including diabetes, kidney problems, heart disease, hypertension and morbid obesity. He worked as a chemical engineer for AMEC and was asked by one of their clients, along with other employees, to work in Dubai. His employer appointed an independent OH doctor to conduct a pre-assignment medical assessment and ultimately concluded that he should not go on health and safety grounds. In particular the doctor cited his appalling medical history, unwillingness to improve his health and the high risk of requiring medical assistance whilst away.
Mr Owen raised a claim for direct and indirect disability discrimination and a failure to make reasonable adjustments. All three of these claims were dismissed by the Employment Tribunal and this decision was upheld by the EAT and the Court of Appeal.
In considering his claim for direct discrimination, the tribunal found that a hypothetical comparator who was not disabled but was still high risk would have been treated the same. Mr Owen tried to argue that AMEC’s decision was fundamentally connected to his disabilities but the court found that disability is not a binary concept and it is not always the case that a person’s health is entirely irrelevant to their ability to do a job.
The Court also commented on the fact that there could in reality be no comparator as arguably anybody with Mr Owen’s health issues would be regarded as having a disability. This therefore would be a case where a claim for discrimination arising from disability rather than direct discrimination may have been more appropriate. However, they said that even if Mr Owen had raised such a claim, they would have been able to objectively justify the decision. On the same grounds, the indirect discrimination claim was dismissed as the requirement to pass a medical before being assigned overseas was seen as a proportionate means of achieving a legitimate aim.
Finally, in considering the reasonable adjustments claim they found that the medical procedures had been reasonably carried out and that AMEC had always acted on the basis of independent medical advice. There was therefore no further obligation upon the employer.
This case suggests that there may be grounds for employers to take precautionary measures to protect the health and safety of their employees even when they do not agree with the decision made. However, what seems important in this case is the fact that it was based on independent medical advice and they had not simply made assumptions based on Mr Owen’s medical history. Furthermore, all of the evidence was relied upon, rather than just the most recent information.
If you have any questions about how to weigh up your duty of care to employees with discrimination legislation, get in touch with your Employment Solicitor or Health and Safety Advisor today.