The EAT has upheld a tribunal decision that an employer had not discriminated against an employee when it withdrew an offer of secondment following advice that the secondment would put the employee at high risk because of her disability.
THE FACTS
Miss Judd successfully applied for a secondment opportunity with her employer, the Cabinet Office. The secondment was to Montenegro. She was then medically assessed by an external organisation, Healix. Healix advised that Miss Judd would, because of her health, be at high risk and that she should not be seconded to Montenegro, at least for the time being.
Miss Judd was then assessed by the Cabinet Office’s OH service. She chose not to give OH full information about her recent medical history. OH assessed her as fit to travel, with various recommendations that should be taken for her protection.
In light of the full medical history to which Healix had access and OH did not, Healix did not agree that the steps OH had recommended be put in place would protect Miss Judd. Healix still considered that she was high risk. The secondment offer was withdrawn.
Miss Judd claimed that she had suffered discrimination for a reason related to her disability and that her employer had failed to make reasonable adjustments. Her case turned on whether the Cabinet Office had acted disproportionately, in withdrawing the secondment opportunity, rather than permitting her to go to Montenegro with the safeguards recommended by OH, in place to protect her from the consequences of her disability manifesting itself.
The employment tribunal dismissed her claim and the EAT upheld the tribunal’s decision. It held that the grounds of appeal, which sought to argue that the tribunal had misdirected itself, or had failed to consider certain reasonable adjustments relied upon by Miss Judd, or other factors relevant to the proportionality analysis, raised unfounded criticisms which were all insufficient to undermine the tribunal’s essential reasoning.
Key points in the judgments were:
- Withdrawing the secondment pursued the legitimate aim of protecting the health, safety and well-being of the employer’s secondees when working abroad.
- Whether withdrawing the offer was proportionate/unreasonable turned on what mitigations and protections could be put in place to safeguard Miss Judd’s health, safety and wellbeing while in Montenegro.
- The same emergency services did not exist in Montenegro as in the UK. If there was a medical emergency, the medical services would not have access to Miss Judd’s medical records, the medical services were not joined up in the same way as they would be in the UK, and there would be a language barrier.
- Miss Judd herself conceded in cross-examination that she would potentially be at risk, even if the OH recommendations were implemented.
- This was the first time that Healix had assessed a Cabinet Office employee as being high risk. The Cabinet Office could not ignore this highly unusual assessment.
- Healix could not tell OH about Miss Judd’s full medical history without her consent, which she did not provide.
- Implementation of the OH recommendations (namely that a health and safety assessment be carried out, that she should register with a local doctor who could liaise with her GP, that she took out appropriate medical insurance, that a wellbeing plan be produced, that there should be a contingency plan for medical evacuation/repatriation in the event of an emergency and that she have regular supervision meetings with her line manager) would not achieve the aim of protecting Miss Judd’s health and safety.
- The withdrawal was not intended to be permanent, and the Cabinet Office had said that it would review the decision after a year.
- Other secondment opportunities were likely to be available.
- The fact the tribunal did not reference the psychological impact of the withdrawal of the offer on Miss Judd did not mean they had not considered the discriminatory effects of withdrawing the offer and whether this was in her best interests.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This is a useful case for employers. It deals with the tricky issue of how to protect employees from the manifestation of a disability when, in other ways, this may disadvantage the employee. On these facts the employer did not act disproportionately so was able to justify its treatment in respect of a claim for discrimination arising from disability and defend a failure to make reasonable adjustments claim.
It is important to note that the Cabinet Office was relying on firm medical advice when it decided to withdraw the secondment offer.
