It is direct disability discrimination if an employer treats an employee less favourably than other people because of their disability.
In a direct discrimination claim, an employee must show they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs. This ensures that the tribunal is comparing like with like, aside from the disability.
In Owen v AMEC, the employee had multiple health issues, including double below-knee amputations, type 2 diabetes, heart disease and hypertension. He had already had a heart attack. He was offered a post in Dubai and was sent for a medical assessment. The doctor raised concerns about the posting abroad due to the employee's health issues. There was evidence that the UAE medical facilities and high temperatures might increase the employee's health risks. The employer would not allow him to take up the job. The employee brought claims for direct and indirect disability discrimination and failure to make reasonable adjustments.
The Court of Appeal said the employee had not suffered discrimination. The correct hypothetical comparator in this case was a person who was advised that they were at high risk of needing medical assistance if posted abroad but who did not have the employee's disabilities. That person would have been treated the same as the employee. It was therefore not direct discrimination. The Court also said that the requirement to pass a medical examination was objectively justified because it ensured that people who work abroad are fit to do so and not exposed to additional health risks. The Court also agreed that there weren’t any reasonable adjustments that could have been made to avoid the disadvantage of such a medical assessment to the employee.
This case shows that a person's health will not always be irrelevant to the job. The employee in this case has applied for permission to appeal to the Supreme Court. We will keep you updated on any developments.
