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LEGAL CORNER: Withdrawal of job offer due to epilepsy not discriminatory

24th Dec 2015

Employers often have to face instances where applicants who are suitable for a role have a disability that requires adjustments to be made; the challenge arises in deciding how much of an adjustment is reasonable and whether to consider employing them or not.

The Employment Tribunal had to decide upon just that in Corry v Merseyrail Electric 2002 Ltd ET/2400795/2015. Mr Corry applied for the position of Station Assistant with Merseyrail. The job description specified that a Station Assistant would be required to work alone overnight and that 90% of the duties would require lone working, with an emphasis on health and safety.

Mr Corry’s CV disclosed that he suffered from epilepsy, which he said was ‘relatively well controlled’ with medication. His seizures would sometimes be brought on by stress and he had previously had a seizure brought on by, amongst other things, shift patterns at his work place. However Mr Corry stated that the seizures were more down to his personal life than work.

Mr Corry performed well at interview and received a job offer that was conditional on satisfactory medical report and references. He undertook a medical assessment, and the doctor concluded that Mr Corry was fit to work, subject to limitations; these being that he must not drive, work at heights, work alone or be allowed to work trackside. Merseyrail considered the medical report and the job specification, and contemplated potential adjustments which could be made to accommodate Mr Corry’s restrictions.

However, given that most of the work required Mr Corry to either work alone or work near the track, Merseyrail came to the conclusion that the cost and difficulties associated with making the adjustments that would be required in this case were unreasonable, and therefore withdrew the conditional job offer.

Mr Corry brought a claim for direct disability discrimination, discrimination arising from disability and a failure to make reasonable adjustments. The employment tribunal, having considered all the evidence, rejected all three claims.

In order to succeed in his claim for direct discrimination, Mr Corry needed to show that the reason the offer was withdrawn was because he suffered from epilepsy. The tribunal found that this was not so; a conditional offer had been made, but the reason for the withdrawal was the unreasonable cost and impracticality of following the restrictions.

The tribunal took into account that Merseyrail had considered the matter in depth and had obtained appropriate medical advice before deciding how to proceed. The adjustments that had been suggested included employing a companion for him and deploying him in a large station where assistance would be more readily available during a seizure. However, the tribunal found that these were either prohibitively expensive or would not necessarily reduce the safety risk.

Merseyrail had to show that the reason it had treated Mr Corry less favourably because of something arising from his disability was a ‘proportionate means of achieving a legitimate aim’. The Tribunal accepted Merseyrail’s argument that its legitimate aim was to ensure the safety of its employees and the public. It had sufficiently investigated other possible adjustments and concluded that they were not possible. Withdrawing the job offer was therefore the only reasonable option. Mr Corry’s claim was therefore dismissed.

This case highlights the importance of investigating and analysing circumstances where an employee (actual or potential) discloses a disability and the need for adjustments. Where adjustments can reasonably be made, employers should endeavour to do so. What is considered ‘reasonable’ will depend on the size of the employer, the nature of the work undertaken by the individual and the effect on both employer and employee of the adjustments.

Cost factors are also relevant. Ultimately it is a balancing exercise, but the key issue is that the employer needs to ensure that it has sufficiently considered the matter and taken appropriate advice before doing so.

Safia Tharoo, Barrister, 42 Bedford Row

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