Disability Discrimination – Employers Don’t Have to Shut Their Eyes to Reality

Discriminating against sick employees is obviously unacceptable, but that does not mean that employers have to ignore health difficulties in deciding whether someone is fit enough to perform a particular role. The Court of Appeal succinctly made that point in the case of a chemical engineer whose medical problems resulted in him being overlooked for an overseas posting.

The man had double below-knee amputations and suffered from type 2 diabetes, hypertension, kidney disease, ischaemic heart disease and morbid obesity. At a client’s request, his employer initially selected him to work on a project in the Middle East. However, following a medical assessment, that decision was reversed on the basis that his deployment to a remote location would give rise to a high risk of medical complications. The employer’s director of operations acknowledged that both he and its client would be disappointed, but said that the duty of care owed to him as an individual came first.

His complaints of direct and indirect disability discrimination, and a failure to make reasonable adjustments in order to cater for his health problems, were rejected by an Employment Tribunal (ET) and that decision was subsequently confirmed by the Employment Appeal Tribunal.

In dismissing his challenge to that outcome, the Court noted that an employee’s health is not always entirely irrelevant to their ability to do a particular job. The reality was that a hypothetical comparator at similar medical risk would have been treated in exactly the same way even if they did not share the man’s particular disability.