EAT: Jason Coppel QC, UKEAT/0260/20/AT, 9 December 2021
This is an interesting case in which the EAT rejected an appeal from a finding that the claimant had not been discriminated against because of something arising in consequence of her disability (s15 EqA), or denied reasonable adjustments (s20(3) EqA) when an offer of a secondment in Montenegro was withdrawn on health grounds. The claimant had been the victim of a crime shortly before having been offered the secondment and had had to attend A&E twice thereafter with significant health issues as a result, but refused to make full disclosure of her health condition. A tribunal dismissed her claim on the basis that the adjustments she sought would leave her at risk and that it was reasonable for the employer to withdraw the secondment offer. The situation was complicated by the claimant’s refusal to make full disclosure to her employer’s OH advisers of her medical history. The claimant’s secondment offer was withdrawn on the grounds that she was “high risk” on the basis of an assessment carried out by a third party (“Healix”) which provided risk assessments for proposed transfers and secondments abroad, based on the availability and quality of healthcare in the countries concerned. This assessment took into account the claimant’s medical history, the fact that medical staff in Montenegro would not have access to her medical history if she were to have a medical episode there, the fact that she might not be able to communicate effectively in the event of a medical episode, language difficulties and the absence of “joined-up” services such as the claimant had availed herself of in the UK.
The claimant sought to argue that she could have been supported in relation to the secondment by a number of reasonable adjustments. These had been suggested by the employer’s OH service which had assessed her as fit to travel if she registered with a local doctor who could liaise with her GP, took out appropriate medical insurance, and was provided with a wellbeing plan and a contingency plan for medical evacuation/repatriation in the event of an emergency. The OH service had, however, based its assessment on a telephone call and had not been informed of the claimant’s recent medical history, including her recent hospital admissions.
The tribunal dismissed the claim on the basis “Whichever of the adjustments the claimant contended for, these would not resolve a potential emergency, say in the early hours of the morning”, noting the claimant’s admission under cross examination that she would “potentially” be at risk or in danger (though “she stressed that her condition was well managed and she took the view that a lot of her support could be obtained over the phone”) and finding that “It was open to the claimant, in challenging the [respondent’s] refusal [to proceed with the secondment], to give full disclosure of her medical situation as understood by Healix and she chose, as she is entitled to, not to give that disclosure” (§§76, 129-130, cited at §§8-9 of the EAT’s decision). At §§138-139 the Tribunal found that “none of the OH mitigating factors would have achieved the aim of protecting the health, safety and wellbeing of the claimant, because OH did not have the full picture and did not understand the full risk” and that “withdrawing the secondment offer in November 2018 was a proportionate means of achieving a legitimate aim at that time. The question of an overseas secondment could be reviewed… after about a year or so”.
The EAT rejected the appeal, ruling at §12 that “the likelihood of an adjustment benefitting the employee, and to what extent, are factors among many which potentially fall for consideration under the head of reasonableness” and at §13 that the tribunal had been entitled to regard as insufficient adjustments which “had merely the prospect of protecting [the claimant’s] health, safety and well being whilst in Montenegro.
Claimant: T O’Halloran, instructed by Thompsons Solicitors LLP
Respondent: L Robinson, instructed by Government Legal Department