Employers must ensure that medical advice is considered in great detail to decide whether any reasonable adjustments could be made. Indeed, there is no qualifying period of employment for an individual to bring a claim for discrimination, and no ceiling on the amount of compensation awarded if a claim is successful.
A chemical engineer, Mr Owen, was offered a posting abroad. He had type 2 diabetes, double below-knee amputations, hypertension, kidney disease, ischaemic heart disease and morbid obesity.
A medical assessment concluded that there was a high risk that Mr Owen would require medical treatment abroad. The company considered that its duty of care to Mr Owen should be prioritised, and informed Mr Owen that he was no longer able to take up the posting abroad.
Mr Owen brought claims of disability discrimination and a failure to make ‘reasonable adjustments’, which is a duty to help disabled employees in certain circumstances.
The tribunal rejected the claims, as a non-disabled employee would have been treated the same way. It found that the medical examination was not discriminatory and no ‘reasonable’ adjustment could have been made.
Mr Owen appealed, arguing that his medical assessment was “indissociable” from his disabilities and on the grounds that there was no real “comparator” in this case.
The Court of Appeal disagreed. It held that the concept of ‘indissociability’ (where an employee’s treatment cannot be separated from their protected characteristic), does not translate to the context of disability discrimination: a person’s health can be relevant to their ability to do their job, and that a hypothetical comparator with any medical risk would have been treated in the same way as Mr Owen.
This case is reassuring for Birmingham employers who require their employees to undertake an occupational health assessment before sending them on work assignments.
Kathy Halliday is a Partner in the Employment Law team at award-winning law firm VWV.