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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Owen v. Amec Foster Wheeler Energy Ltd & Ors [2018] UKEAT 0210_17_2302 (23 February 2018) URL: http://www.bailii.org/uk/cases/UKEAT/2018/0210_17_2302.html Cite as: [2018] UKEAT 0210_17_2302, [2018] UKEAT 210_17_2302 |
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| At the Tribunal | |
Before
HER HONOUR JUDGE EADY QC
(SITTING ALONE)
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
| For the Appellant | MS YVETTE GENN (of Counsel) Instructed by: DPH Legal Davidson House Forbury Square Reading RG1 3EU |
| For the Respondents | MS GEMMA ROBERTS (of Counsel) Instructed by: Squire Patton Boggs (UK) LLP 6 Wellington Place Leeds LS1 4AP |
SUMMARY
DISABILITY DISCRIMINATION
DISABILITY DISCRIMINATION - Direct disability discrimination
DISABILITY DISCRIMINATION - Reasonable adjustments
DISABILITY DISCRIMINATION - Justification
Disability discrimination - direct discrimination (section 13 Equality Act 2010) - indirect discrimination (section 19) - failure to make reasonable adjustments (sections 20 and 21) - justification
The Claimant who was disabled by reason of having undergone double below-knee amputations and suffering from type 2 diabetes and other health conditions, was denied the opportunity to take up an assignment in Dubai because his disabilities were considered to give rise to a risk if he were deployed at a location remote from the UK. The Claimant complained that this amounted to direct and/or indirect disability discrimination and/or that the Respondents had failed to comply with an obligation to make reasonable adjustments. The ET unanimously rejected the Claimant's complaint of direct discrimination and, by a majority, dismissed his claims of indirect discrimination and of a failure to make reasonable adjustments. The Claimant appealed.
Held: dismissing the appeal
At the heart of the Claimant's appeal was his contention that the ET had misinterpreted the medical evidence that had informed the Respondents' decision that he should not take up the assignment; failing to appreciate that the medical advice went no further than identifying the risks the Claimant lived with on a day-to-day basis given his disabilities. On the direct discrimination claim, however, the ET had been entitled to find that a similarly placed comparator - subject to medical advice that they were at a high risk of needing medical assistance if deployed at a location remote from the UK - would have been treated in the same way as the Claimant. As for the claims of indirect discrimination and failure to make reasonable adjustments, the ET majority had correctly undertaken a staged approach to the issues it was required to determine. On the indirect discrimination complaint, ultimately the question was whether the Respondents had established that the requirement to undertake a medical assessment was justified. Given the legitimate aims the ET had found proven (essentially the avoidance of risk), the ET majority had permissibly found that this was justified. As for the reasonable adjustments complaint, the only adjustment identified by the medical advice was not to permit the Claimant to take up the assignment; otherwise, the Claimant's complaint was really whether the Respondents should have undertaken a further assessment but that went to process rather than any adjustment.
HER HONOUR JUDGE EADY QC
Introduction
The Relevant Background and the ET's Decision and Reasoning
"All of the guys there actually live in Dubai which again is well built with medical facilities nearby, they generally all commute on a daily basis and its approx. 30 minute drive between locations." (ET Decision, paragraph 20)
"It remains my view that his assignment to any remote location from the UK is a high risk. I do believe that this situation should be drawn to the attention of the Chief Medical Officer
Nevertheless, in terms of UK occupational health law, he is fit for this assignment." (ET Decision, paragraph 21)
"Dr Sawyer called me to discuss this case.
He confirmed that in terms of the role, he is able to perform the job.
However he has an appalling medical history and seems unwilling to improve his health. His diabetes and blood pressure are poorly controlled and he has already had one heart attack.
He is at high risk to need medical assistance whilst he is out there." (ET Decision, paragraph 22)
"Called Joanne Legg to discuss Mr Owen, confirmed to her that Mr Owen is able to carry out the role, but is at high risk of medical emergency occurring overseas.
She will discuss with the project as they may want him to be regularly monitored.
Offered to look into possible cost as well as for risk planning. Joanne will let me know if this is needed." (ET Decision, paragraph 23)
"I have today spoken with Healix regarding Robert Owen's assignment to Sharjah. Although the job that Robert will be doing is much the same as his current role in Reading, which Healix don't have a problem with, they still have concerns with Robert's health and have advised that it will only be a matter of time before something happens to him either in the UK or in Sharjah. The consultant also stressed that Robert appears not to have any motivation to sort himself out with his current issues.
Having now spoken to our HR Consultant it is our recommendation not to send Robert on an assignment and that further approval should be put in place if you wish to go ahead." (ET Decision, paragraph 24)
"Robert has worked in this office for the last 8 years (and also previously). He has diabetes and also high blood pressure. He has had both his feet amputated which has actually made it easier for him to get around. He drives an adapted car in the UK, and would use a taxi on assignment. The assignment is office based.
I am not allowed to see the medical due to confidentiality, but HR have advised that it is their recommendation that he does not go on assignment.
My initial view would be that as long as Robert's own doctor formerly confirms that he can go, we would sit down with Robert, voice and document our concerns and let him make the decision? As there is an increased risk of health [issues] occurring we would also need to check with our insurers.
The alternative is that he would be put at a high risk [of redundancy]." (ET Decision, paragraph 25)
"Based on the information presented and the feedback from the medical advice, I'll make the call - the answer is No. We need to find a replacement." (ET Decision, paragraph 28)
"I met with Claire Williams, HR Manager, shortly after I received this email to discuss the situation and was advised that the medical had taken place however, Healix had not provided a definitive response regarding the Claimant's fitness to take up the assignment. The lack of clarity was around that the Doctor felt that there was a risk to the Claimant's health because of his medical conditions but that it was being left up to the business to make the final decision about whether or not to send the Claimant on assignment.
The discussion was short and no further details of the medical situation had been shared. Based upon the medical concerns alone, I took a decision not to proceed with the assignment any further, in the interests of the individual and recognising our duty of care to him. I also took the decision in the full knowledge that this would result in frustrating our client and that it could be detrimental to our business because we could not send the person that the client had requested, I also recognised that it would take time to find a suitable alternative and this would result in a loss of revenue to the organisation. However I considered the duty of care to the individual came first." (ET Decision, paragraph 27)
"49. the Tribunal considered that an appropriate hypothetical comparator would be a person without a disability, who had been assessed by a medical practitioner as being of "high risk" to send on the assignment because of his medical history and the risk of a medical emergency occurring overseas.
50. The Tribunal could find no evidence to support the assertion that a hypothetical comparator would not similarly be refused to proceed on the assignment. Such a comparator would have been treated no differently to the Claimant.
51. Additionally, the Respondent had clearly shown that there was a well documented non-discriminatory reason for allowing the Claimant to deploy on the assignment, that is because of the medical assessment of Dr Sawyer. There was ample evidence to show that Mr Shaughnessy's decision, supported by the medical evidence and the views of the HR department, was based wholly and solely upon the conclusions of the medical assessment and the consequential duty of care towards the Claimant. It was in no sense whatsoever because the Claimant was a disabled person."
"The primary aim of the health screening process is to ensure that all those people who go on global assignment are fit to go on assignment, that any health risks can be properly managed, and that those going on assignment are not subjected to any unnecessary health risks as a result of the assignment." (ET Decision, paragraph 59)
"62. It would not be possible to achieve the legitimate aim without the medical assessment. The Healix process was fair, reasonable and necessary. The Claimant was not assessed as fit to go on the assignment as evidenced by the conclusions of Dr Sawyer mentioned above. There were no other proportionate means available to achieve the aim. The assessment was carried out in a reasonable manner. The Respondent did not rely solely upon Dr Sawyer's first reports but provided him with further information regarding the circumstances of the proposed assignment and received further advice from Dr Sawyer, through Healix, on 11 and 12 November 2015 as mentioned above. There was, therefore, sufficient and necessary medical assessment, adequate follow up and further assessment obtained before the decision was made."
"63. although there was a legitimate aim, the means of achieving the aim were not proportionate. Further investigations and assessments should have been carried out to establish what adjustments could be made to avoid or mitigate the high risks of the Claimant proceeding on the assignment outside the UK. He had only been assessed initially as "temporarily unfit" for the assignment. A failure to carry out these further investigations meant that these were not proportionate."
"In the alternative, was there a PCP that the medical examination be undertaken in London, without amending the time of the examination, without informing the examining doctor of the Claimant's disability and with no follow up or risk assessment?" (ET Decision, paragraph 67(7))
"70. found that there was no reasonable adjustment that could be made to avoid the disadvantage. The Claimant's multiple medical conditions were such that a medical assessment was necessary. The procedure followed and the assessment itself were both fair and reasonable.
71. The Claimant was assessed as being at high risk of a medical emergency occurring if he was deployed overseas. No adjustments were suggested by Dr Sawyer. The high risk arose from the Claimant being deployed overseas. The only adjustment which would avoid that disadvantage would be to allow the deployment without having to pass a medical assessment. That was not a reasonable adjustment. Once the assessment of high risk had been made, the only reasonable adjustment to avoid the risk was not to deploy him overseas.
72. So far as the suggested reasonable adjustments were concerned, there was a follow up after the first medical assessment on 12 October 2015 when the Respondent provided further details of the circumstances and facilities which would be available to the Claimant in Sharjah if he was deployed. A risk assessment was not necessary because the medical assessment was by its very nature a risk assessment, the outcome of which was an assessment of "high risk". There was no in-house medical person available to refer the matter to and the medical assessment, with the follow up, was sufficient to comply with the duty of making reasonable adjustments."
"73. if she had been consulted at the time she would have wholeheartedly agreed with the decision that there were concerns with the Claimant's health and that he was "high risk". She said "There is absolutely no way that I would have considered that it is appropriate to send the Claimant to work in Sharjah with the medical information available at that time"."
"74. the follow up of the initial assessment was insufficient and should have included a more detailed assessment of the circumstances and facilities at the Dubai/Sharjah location. A more detailed medical assessment should have been organised to assess whether the health risks could be properly managed, avoided or mitigated."
The Appeal
The Claimant's Case
1) The ET erred in its analysis by failing to identify that the decision not to deploy the Claimant was necessarily one based on his disability.
2) The conclusion that the Second Respondent's decision was based "wholly and solely" upon the conclusions of the medical assessment was plainly wrong or failed to have regard to the conclusion reached by Dr Sawyer on 3 November 2015; the medical advice was not that the Claimant was put at risk by the assignment but by his various medical conditions.
3) In the further alternative, given Dr Sawyer's conclusion of 3 November 2015, the ET erred in law or reached a perverse conclusion in allowing any common law duty of care to supersede the statutory protections of under the EqA.
1) Erred in law or reached a perverse conclusion in finding the PCP was justified: the Respondents had properly characterised the PCP as being that the Claimant had been required to pass a medical examination to a certain level before being sent on assignment; the ET had been required to undertake a staged approach in determining whether this was justified and that was not apparent from its reasoning.
That fed into the further point taken in the re-amended grounds of appeal that:
2) The ET erred in law in failing, adequately or at all, to consider the nature of the particular disadvantage in this case; see the judgment of the Supreme Court in Essop and Others v Home Office [2017] ICR 640, at paragraphs 33 to 34.
And, also by way of re-amendment:
3) The ET majority further fell into error by treating the Claimant as having failed the medical assessment; in particular, erroneously stating (see paragraph 62) that the Claimant had not been "assessed as fit to go on the assignment" when that was not Dr Sawyer's final determination - he had assessed the Claimant as at high risk if assigned to any remote location from the UK, but had advised he was fit for this assignment in terms of UK occupational health law.
4) The ET majority further erred in its conclusion on proportionality, in finding there were no other proportionate means to achieve the aim when there had been no proper consider of any other means by which the Claimant's health conditions and any associated risk could be managed or mitigated; the ET majority had failed to identify or consider what alternatives might have been available, and thus failed to properly conduct the proportionality exercise required of it; see cases such as Cadman v Health and Safety Executive [2005] ICR 1546 CA, Allen and Others v GMB [2008] ICR 1407 CA, and Government Legal Service v Brookes UKEAT/0302/16 (28 March 2017, unreported).
5) Relatedly, the ET majority further erred in law or reached a perverse conclusion in conflating the reasonableness or otherwise of the carrying out of the assessment with the proportionality exercise. Specifically, the legitimate aim for which the Respondents contended identified that the assessment was required so that health risks could be properly managed, and yet no evidence was provided -and no consideration given by the ET majority - as to the management of the risks or any adjustments that might have been made to mitigate the risks.
6) Moreover, in focusing on the reasonableness of the assessment, the ET majority fell into the error of considering the reasonableness of the Respondents' decision rather than applying the objective test as identified by the Court of Appeal in Hardys & Hansons plc v Lax [2005] ICR 1565, see at paragraph 32. Specifically, the ET was not applying a band of reasonable responses test but was required to carry out a balancing exercise in terms of proportionality, and the ET majority in this case had failed to engage with this in any meaningful way; its reasoning at paragraph 62 was simply inadequate to the task required demonstrating no conclusion as to why there was a risk (there being nothing about the location or journey identified by the medical advice and no demonstration that the ET majority had considered the further steps the Respondent had referenced internally: the possibility of regular monitoring, the looking into risk planning as discussed in the 12 November conversation between Healix and Mrs Legg). The ET majority seemed, rather, to have adopted a binary approach, essentially moving from the fact that there were a number of health concerns to assume that questioned the suitability of the assignment, but (the Claimant asked rhetorically) what was the particular disadvantage that arose from the fact of the assignment as opposed to the risks posed generally to the Claimant as a result of his health issues?
1) The ET had been obliged to carry out a staged approach to establishing any breach of the duty under sections 20 and 21 EqA, see Environment Agency v Rowan [2008] ICR 218 EAT, Royal Bank of Scotland v Ashton [2011] ICR 632 EAT, Newham Sixth Form College v Sanders [2014] EWCA Civ 734, and General Dynamics Information Technology Ltd v Carranza [2015] ICR 169 EAT. The majority had failed to carry out this exercise, instead adopting a binary approach assuming that the Claimant's health issues meant that he could not travel and thus there were no reasonable adjustments to be made.
2) Specifically, the ET majority failed to give consideration to the nature of the disadvantage to be removed and the means by which it could reasonably be removed, see Chief Constable of South Yorkshire Police v Jelic [2010] IRLR 744 EAT.
3) That fed into the error of law/perverse conclusion in the ET majority's finding (paragraph 70) that there were no reasonable adjustments that could have been made to avoid the disadvantage. The obligation to make reasonable adjustments pursuant to section 20 EqA imported an active process, requiring a positive identification of the steps that might be taken to remove the disadvantage; there was no sign of that here. Accepting there may be cases where this was difficult because the options were limited, there was no evidence that that was this case. Here, the ET minority had adopted the correct approach at paragraph 74.
4) More specifically, the ET majority erred in incorrectly identifying the risk to the Claimant as being the risk of deployment rather than the risks associated with his medical conditions and disability. It further erred in finding that, because no adjustments were suggested by Dr Sawyer, effectively there were none that could have been suggested or made. Again, the decision was based on a false premise - namely that the risks to which Dr Sawyer had referred were by virtue of the assignment overseas, when in fact he had assessed the Claimant as fit for that assignment; the risks to which he referred were the medical risks associated with the Claimant's disability.
5) Additionally, and as for the indirect discrimination claim, there was no evidence from which it could be rationally concluded there was no alternative to not deploying the Claimant on assignment contrary to the ET majority's finding at paragraph 71; again, the ET majority wrongly conflated the issues of risk and the duty to make reasonable adjustments, the correct approach being that adopted by the ET minority. There was no evidence on which the majority could rely as indicating the Respondents had done all that could reasonably be expected.
The Respondents' Case
1) The Claimant's case failed at the first stage: there was no evidence of less favourable treatment; the "reason why" part of the test thus did not arise.
2) That was a permissible conclusion given the ET's entirely proper finding as to the nature of the medical evidence (see above) and, even if it were allowed that the material circumstances of the Claimant and the hypothetical comparator would need to include the fact that he was also at high risk when working in the UK, there was nothing to gainsay the ET's conclusion that the same decision would still have been reached in the comparator's case as for the Claimant.
3) In any event, the ET had unanimously and permissibly concluded that the reason for the Respondents' decision was not, as the Claimant contended, motivated by any conscious discriminatory intent but was based solely on the medical opinion received (see ET, paragraph 51).
4) As for the reference to the duty of care, this did not betray an error of law; the ET was not suggesting any common law duty superseded statutory protections under the EqA - the ET's point was that any person deemed to be at high risk would not have been placed on assignment given the First Respondent's duty of care to its staff; it was a point going to comparison and the genuineness of the Respondent's explanation.
1) The ET majority did consider this question but formed a different view on the evidence; and, in any event:
2) Had focused on the insurmountable problem for the Claimant's case posed by the third element (see ET, paragraphs 61 and 62).
1) Paragraph 71 did not indicate any errors. The ET majority properly understood the medical evidence: if the Claimant was sent on assignment, he would be exposed to high risk due to his medical conditions.
2) In any event, the Respondents did explore matters further with Dr Sawyer (as the ET majority recognised at paragraph 72) but he had remained of the view that the Claimant would be at high risk; having received that further advice, there were no reasonable steps open to the Respondents.
3) The ET majority also had the benefit of hearing from Dr Patterson who made good that point.
4) The fact that the ET minority took a different view did not suggest any error of approach on the part of the majority, simply that Ms Edwards had felt that a more detailed assessment was necessary, that, however, betrayed an incorrect approach - as per the guidance in Royal Bank of Scotland v Ashton, the focus was properly on the practical result of the measures that could have been taken, not the process of reasoning leading to the making/failure to make a reasonable adjustment. And to the extent that the ET majority descended into a discussion of risk assessment or more detailed medical examination, that was simply in response to how the Claimant's case had been put below.
The Claimant in Reply
The Relevant Legal Principles
1) of direct disability discrimination contrary to section 13;
2) of indirect disability discrimination contrary to section 19;
3) of discrimination because of a failure to comply with an obligation to make reasonable adjustments contrary to sections 20 and 21.
"(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if -
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are -
disability "
"33. In order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual. This may be easier to prove if the reason for the group disadvantage is known but that is a matter of fact, not law."
"32. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the employers' submission (apparently accepted by the appeal tribunal) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances.
33. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby [2001] ICR 1189 and in Cadman [2005] ICR 1546, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind, as did this court in Allonby and in Cadman, the respect due to the conclusions of the fact-finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification.
34. The power and duty of the employment tribunal to pass judgment on the employer's attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached. The risk of superficiality is revealed in the cases cited and, in this field, a broader understanding of the needs of business will be required than in most other situations in which tribunals are called upon to make decisions."
"(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
"
"(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.
(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.
"
"24. Thus, so far as reasonable adjustment is concerned, the focus of the tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not - and it is an error - for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons."
"37. The general approach to the duty to make adjustments under section 20(3) is now very well known. The employment tribunal should identify (1) the employer's provision, criterion or practice at issue, (2) the persons who are not disabled with whom comparison is made, and (3) the nature and extent of the substantial disadvantage suffered by the employee. Without these findings the employment tribunal is in no position to find what, if any, step it is reasonable for the employer to have to take to avoid the disadvantage. It is then important to identify the "step". Without identifying the step it is impossible to assess whether it is one which it is reasonable for the employer to have to take."
"51. What is required of employers in relation to adjustments is, of course, limited to what is reasonable.
52. Since each case will turn on its own facts, we recognise that the scope of the duty of reasonable adjustments on employers cannot be precisely defined. However, the duty to act reasonably towards employees is not an unfamiliar concept in employment law. In the field of accommodating disabled employees we consider that certainty for employers is sufficiently achieved by the application of objective standards of reasonableness in the particular circumstances of each case. It must be assumed that reasonable employers will wish to comply with the legislation and therefore to take all reasonable steps to accommodate those amongst their employees who are, or become, disabled and are thereby disadvantaged at work."
Discussion and Conclusions