Robert Owen v Amec Foster Wheeler Energy Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Baker,Lord Justice Newey |
| Judgment Date | 14 May 2019 |
| Neutral Citation | [2019] EWCA Civ 822 |
| Docket Number | Case No: A2/2018/0867 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 2019 |
[2019] EWCA Civ 822
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ EADY QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Newey
Lord Justice Singh
and
Lord Justice Baker
Case No: A2/2018/0867
Yvette Genn and Sally Robertson (instructed by DPH Legal) for the Appellant
Diya Sen Gupta QC (instructed by Squire Patton Boggs) for the Respondents
Hearing date: 19 March 2019
Approved Judgment
Introduction
This is an appeal from the decision of HHJ Eady QC in the Employment Appeal Tribunal (“EAT”) dated 1 June 2018, which upheld the decision of the Employment Tribunal (“ET”) finding that the Claimant had not been subjected to direct disability discrimination and, by a majority, that the Respondents had neither subjected the Claimant to indirect disability discrimination, nor were they in breach of the duty to make reasonable adjustments. For ease of exposition I will refer to the parties as the Claimant and the First and Second Respondents, as they were in the ET.
Permission to appeal to the Court of Appeal was granted by Lewison LJ by order dated 16 July 2018.
The Claimant is a disabled person. He worked as a chemical engineer for the First Respondent from 2007 onwards. In 2015, he was among several employees who were requested by an important client to take up an assignment in Dubai. This opportunity was denied to him by the Respondents, because his disabilities were considered to give rise to a high risk of medical complications if he were to be deployed at a remote location. The Claimant complained that this amounted to direct disability discrimination, contrary to section 13 of the Equality Act 2010 (“the 2010 Act”); indirect disability discrimination, contrary to section 19 of that Act; and a breach of the duty to make reasonable adjustments, contrary to section 20.
Factual and Procedural Background
The Claimant is a disabled person; he has double below knee amputations and type 2 diabetes. He also suffers from hypertension, kidney disease, ischaemic heart disease and morbid obesity. Based in Reading, he commenced work with Foster Wheeler as a chemical engineer on 4 July 2007, which in 2014 merged with Amec to form Amec Foster Wheeler Energy Limited (the First Respondent).
The First Respondent is an international project management, engineering services and consultancy company which designs, delivers and supports infrastructure assets for public and private sector customers. It has a global mobility department which deals with international secondment of employees sent abroad to work on behalf of clients. Mr James Shaughnessy, the Second Respondent, is the Operations Director of the First Respondent.
In early 2015, the Claimant worked on the front end design phase of a project to build a large hydrocarbon gas processing facility in Saudi Arabia. In September 2015, the project's client identified a number of engineers from the front end design team, one of which was the Claimant, whom they wanted to take up roles within the second phase of the project, based in Sharjah, Dubai, UAE. This assignment in Sharjah was planned to start on 1 November 2015 for 12 months, although this was changed to start mid-February 2016. On 14 September 2015, Mr Wilson, the Claimant's line manager, informed the Claimant that the client wanted him to be part of the project management team in Sharjah. The global mobility department was informed in order that the necessary preparations could be made.
The First Respondent's occupational health department was closed in February 2015 and was outsourced to an occupational health organisation called Healix. The pre-merger Foster Wheeler global mobility assignment policy remained in force but their pre-assignment medical procedure was superseded by a new procedure involving Healix. There was a dispute before the ET as to whether the correct procedure was applied to the Claimant, but that is no longer an issue. The ET found that the Healix procedure applied to all employees who were due to be deployed on assignments overseas. This involved approximately 200 employees globally and, of those, approximately 30–40% were required to attend medical assessments.
In accordance with this procedure, the Claimant completed a medical questionnaire on 7 October 2015 in which he confirmed some, but not all, of his medical conditions. He did not, for example, disclose his amputations or his kidney problems. Upon receipt of the questionnaire Healix required the Claimant to undergo a pre-assignment medical assessment.
This assessment took place on 12 October 2015 and was conducted by Dr Sawyer. Following the assessment, Dr Sawyer sent an email to Healix with his preliminary findings, copied to both the Claimant and the First Respondent. It stated:
“Dear colleague
I felt that I should alert you to the preliminary findings on Robert Owen.
This man is 49 years old and was diagnosed as diabetic at the age of 23. Control is apparently poor with a recent HbA1c of 11%.
He has hypertension 160/90 despite treatment.
He has had laser treatment to both eyes (most recently 4 years ago) and a vitrectomy on the left.
He has morbid obesity weighing 149kg – BMI 42.2 by approximation as height difficult to judge due to Bilateral below knee amputations 8 years ago for ? Charcot joints osteomyelitis.
He has renal impairment and is awaiting NHS assessment if [ sic] the severity of it – he thinks eGFR c49.
He has ischaemic heart disease with an inferior MI 3 years ago (Still visible on ECG), stents x 2 in situ.
Treatment – insulin, ramipril, amiodipine, statin, omeprazole, ivabradine…”
Dr Sawyer also completed a medical certificate which said that the Claimant was “temporarily unfit for onshore location duties – pending discussion with company's OH's physician. Multiple pathologies, remote location”.
The First Respondent then provided Dr Sawyer with further information about the assignment. On 26 October 2015 an email was sent to Natalie Carr (a Healix consultant) stating that the “office location in Sharjah is in a built up area and therefore not remote. All of the guys there actually live in Dubai which again is well built with medical facilities nearby, they generally all commute on a daily basis and it's approx. 30 minute drive between locations”.
Ms Carr emailed back on 3 November 2015, quoting Dr Sawyer as advising that: “It remains my view that his assignment to any remote location from the UK is a high risk. I do believe that this situation should be drawn to the attention of the Chief Medical Officer of AMEC Foster Wheeler. Nevertheless, in terms of UK occupational health law, he is fit for this assignment”.
On 11 November 2015, Ms Carr reported as follows:
“Dr Sawyer called me to discuss this case. He confirmed that in terms of the role, he is able to perform the job. However he has an appalling medical history and seems unwilling to improve his health. His diabetes and blood pressure are poorly controlled and he has already had one heart attack. He is at high risk to need medical assistance whilst he is out there”.
The next day, she reported as follows:
“Called Joanne Legg [the First Respondent's Mobility Adviser] to discuss Mr Owen, confirmed to her that Mr Owen is able to carry out the role, but is at high risk of medical emergency occurring overseas. She will discuss with the project as they may want him to be regularly monitored. Offered to look into possible costs as well for risk planning”.
She continued:
“Member was initiated as a risk based assessment. On review of the medical questionnaire, it was decided that he should have an onshore medical. Medical was carried out at 48 wimpole street and the clinic have marked him as temporarily unfit. The doctor would like to discuss this member with AmecFW to decide whether he could be deployed depending on facilities at the location and accommodations they could make for the employee.”
On 12 November 2015, Mrs Legg wrote to Mr Wilson as follows:
“Although the job that Robert will be doing is much the same as his current role in Reading, which Healix don't have a problem with, they still have concerns about Robert's health and have advised that it will only be a matter of time before something happens to him either in the UK or in Sharjah. The consultant also stressed that Robert appears not to have any motivation to sort himself out with his current issues.
Having now spoken to our HR Consultant it is our recommendation not to send Robert on an assignment and that further approval should be put in place if you wish to go ahead.”
Mr Wilson contacted Mr Barron, the manager of engineering, who communicated his view to Mr Shaughnessy that:
“My initial view would be that as long as Robert's own doctor formally confirms that he can go, we would sit down with Robert, voice and document our concerns and let him make the decision? As there is an increased risk of a health issue occurring we would also need to check with our insurers. The alternative is that he would be put at high risk [of redundancy]”.
On 16 November 2015, Mr Shaughnessy was briefed by Mrs Williams, the manager of HR, about the issues surrounding the Claimant's proposed assignment. Mr Shaughnessy then decided that the Claimant should not be deployed on the assignment. He stated in his witness statement that Healix “had not provided a definitive response regarding the Claimant's fitness to take up the assignment. The lack of clarity was around that the Doctor felt that there was a risk to the Claimant's health because of his medical conditions but that it was being left up to the business to make the final decision about whether or not to send the Claimant on...
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