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Legal corner: Withdrawal of secondment offer on health grounds was not disability discrimination

31st Dec 2021
Legal corner: Withdrawal of secondment offer on health grounds was not disability discrimination

Regular readers will be aware that whilst treating someone less favourably because they have what is legally referred to as a ‘protected characteristic’ (such as race, sex, religion, disability, and others), those who meet the definition of a ‘disabled person’ also have additional protection, most notably that an employer must make ‘reasonable adjustments’ for them where their disability means that they struggle to access or use their work facilities, or to undertake parts of their role.

An employer does not have to make every adjustment that might ease the disadvantage of their disabled employee – the test is one of reasonableness. So, whilst it might be reasonable for an employee with a back condition to be provided with a more suitable desk chair if the ones in their office do not provide sufficient support, it might not be reasonable for an employee’s entire job description to be re-written to remove all aspects of their role which might cause them stress, if there are insufficient other tasks that they can do.

The focus on reasonableness also involves an assessment of the nature of the employer – what might be considered a reasonable adjustment for a large employer to make might not be the same for a smaller employer.

A rather unusual situation arose in the recently decided case of Judd v Cabinet Office (Case Number EA-2020-000468-AT). Ms Judd was an employee who had applied for a secondment opportunity in Montenegro. She was successful in her application, and after being offered the position, had to undergo a medical clearance assessment by an independent organisation. Ms Judd was an individual with a disability, and in the months before her assessment, had had two significant health episodes that had led to her attending A&E.

The assessment looked at the availability and quality of healthcare in the relevant country, having regard to the health of the individual.

The conclusion was that Ms Judd was considered to be ‘high risk’ and should not travel to Montenegro. Suggestions from the employer’s occupational health team, such as registering with a local doctor who could liaise with Ms Judd’s GP, and taking out appropriate medical insurance, were not considered to be sufficient to mitigate the risks involved.

As a result of the independent medical assessment, Ms Judd’s employer withdrew the secondment offer. She brought claims in the employment tribunal arguing that the withdrawal of the offer amounted to discrimination on the grounds of her disability, and that her employer should have made reasonable adjustments for her to take up the opportunity that she had been offered.

That argument was rejected by the employment tribunal, and Ms Judd’s appeal was also unsuccessful. The tribunal accepted that the adjustments that Ms Judd had argued for had already been considered by the independent medical assessors and were insufficient.

They highlighted the concern that had been raised, that were Ms Judd to have a significant health episode in Montenegro, perhaps in the middle of the night, she would not have access to the type of facilities and services that she could access in the UK, even before the language barriers were taken into account. This was something that Ms Judd had accepted herself in evidence.

As a result, it was not discriminatory to withdraw the secondment offer, as there was no duty to make adjustments where they did not mitigate the risks identified.

This case highlights the important point that, when considering adjustments, it needs to be clear how the adjustment will remove the disadvantage created. If it cannot, as was the case here, then there is no duty to make it. Where it can remove a disadvantage, it is then a matter of whether that change is reasonable in all the circumstances.

Safia Tharoo
Barrister, 40 Bedford Row, London

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