The Court of Appeal held it was not disability discrimination on the facts to refuse to send an employee on an assignment to Dubai because of high medical risk. The case is of interest on direct disability discrimination – it is not enough that the reason for less favourable treatment is ‘indissociable’ from the disability. However even if it is not direct discrimination, one can claim ‘discrimination arising from disability’ where the employer has to show its actions were justified.
2019, Court of Appeal. Full judgment: bailii.org.
The claimant had multiple health conditions. A client asked for him to be sent on assignment to Dubai. The employer consulted Occuptational Health and decided not to send him ‘in the interests of the individual and recognising our duty of care to him’. He had an ‘appalling’ medical history and seemed unwilling to improve his health. His diabetes and blood pressure were poorly controlled, and he had already had one heart attack. If he was not sent to Dubai though, he would be at high risk of redundancy.
The employment tribunal dismissed his disability discrimination claims.
Held by the Court of Appeal: The tribunal was entitled to dismiss his claims. There was no direct discrimination. As regards indirect discrimination, the tribunal were entitled to find the employer’s decision was objectively justified.
The claimant argued that the reason for not sending him was the medical assessment that he was at high risk, and that this was indissociable from the facts constituting his disability. Whatever the benign motive of the employer, there was a necessary and inherent link between the reason for the employer’s decision and the claimant’s disabilities. Therefore it was (he argued) was direct discrimination.
The Court of Appeal held there was no direct discrimination, because a hypothetical comparator with the requisite medical risk would have been treated in exactly the same way, even if they did not have the claimant’s particular disability. Under the Disability Discrimination Act 1995, direct discrimination was treating a disabled person less favourably than someone ‘not having that particular disability whose relevant circumstances including his abilities, are the same as, or not materially different from, those of the disabled person’. The EAT in High Quality Lifestyles Ltd v Watts had held it is not enough to simply establish a causal connection between the disability and the treatment complained. If someone else with a medical illness or injury of the same gravity as the claimant’s but not having his or her particular disability would have been treated no more favourably, direct discrimination is not established. The Court of Appeal said this had also been approved by the court in Stockton-on-Tees Borough Council v Aylott.
Those cases were decided under the Disability Discrimination Act 1995. However in substance the effect of s.13(1) Equality Act 2010 was the same. The court could see no reason to think Parliament intended to materially change the law in this respect when it enacted the 2010 Act.
Not enough that reason for less favourable treatment is ‘indissociable’ from disability
The court said concepts used in the context of disability discrimination law are not always the same as those used in the context of racial and sex discrimination law. For race or sex discrimination a criterion is sometimes used to differentiate between persons which exactly corresponds to the prohibited characteristic and therefore can truly be regarded as a proxy for it. An example is being of pensionable age, which was accepted as a ‘proxy’ criterion in James v Eastleigh Borough Council as regards sex discrimination, at a time when it was 65 for men and 60 for women. Adopting that criterion necessarily and in all cases distinguished between men and women. The present case was different – including from Amnesty International v Ahmed – because the employer did not use a ‘proxy’ for the claimant’s disability as a reason to treat him less favourably. Furthermore, said the court:
‘unlike racial or sex discrimination, the concept of disability is not a simple binary one. It is also not the case that a person’s health is always entirely irrelevant to their ability to do a job. For those reasons the concept of indissociability, which forms the foundation of much of [the claimant’s] submissions, cannot readily be translated to the context of disability discrimination.
The court held the tribunal was entitled to find there was no indirect discrimintion because the employer’s decision was justified.
The court took into account evidence of an occupational health practitioner who had not examined the claimant. She said for example that Dubai as a country had a higher medical risk rating than the UK, and that increased heat and humidity would increase the risk for his health conditions.
It seems sensible that this case was not direct discrimination, but rather the court should be allowed to consider whether the employer’s decision was justified on the facts.
There have been two important Court of Appeal decisions on direct discrimination within a month of each other, this one and Coffey. Both cases tend to restrict the scope of direct disability discrimination, but I think not unreasonably. If it is not direct discrimination, the claimant can still claim discrimination arising from disability and it is up to the employer to try and justify its action. Calling something ‘direct discrimination’ more or less sets a firm line to say it can never be justified. One can understand that the court in the present case would be reluctant to say that a refusal to send someone abroad because there is a high medical risk can never be justified.
There is still the question whether the employer’s action should have been held to be justified in the present case. The claimant seems not to have raised the argument that if the employer was only concerned about the risk to him, that should be a decision for him to take. It would have been interesting for the court to address that.
The decision on justification can also be criticised for focusing not on the justification of the general rule but on its particular application to the claimant (see eg City of Oxford Bus Services v Harvey, EAT, 2018). The Court of Appeal did not discuss this issue. However the issue only arises because unusually the claim here was for indirect discrimination. Normally a claim in this type of case will be for discrimination arising from disability, where the approach (which seems to have been taken here) of assessing whether the unfavourable treatment of the individual claimant was justified will be correct.