Written by Yavnik Ganguly – Paralegal, Employment and Professional Discipline

Robert Owen v (1) Amec Foster Wheeler Energy Limited and (2) James Shaughnessy [2019] EWCA Civ 822; May 14, 2019

Introduction

The appeal concerned the ET and EAT’s findings that the appellant Robert Owen (RO) was not subjected to disability discrimination.

Dismissing his appeal on all his claims, the CA gave guidance on comparators in claims of direct disability discrimination, the application of indissociability arguments and correct assessment of whether adjustments are reasonable.

Facts

Amec Foster Wheeler Energy Limited (AF) employed RO as a chemical engineer in the UK. James Shaughnessy (JS)  was  AF’s  Operations  Director.  RO  is  a  disabled person with multiple conditions including  double below knee amputations, type 2 diabetes, hypertension, kidney disease, and ischaemic heart disease. He was one of a number of employees that a client of AF selected to work on a project in Dubai.

Before moving to Dubai, RO completed a medical questionnaire disclosing some of his medical conditions; Dr Sawyer, who was appointed by Occupational  Health (OH), conducted a medical assessment. Dr Sawyer assessed RO to be ‘temporarily unfit for onshore location duties – pending discussion with company’s OH’s physician’. AF corresponded with JS and OH about the risks of sending RO to Dubai.

JS made a decision not to allow RO to be sent to Dubai. He informed RO of this decision on November 17, 2015. On March 13, 2016 RO lodged claims against AF and JS for direct and indirect disability discrimination and failure to make reasonable adjustments.

Employment Tribunal and Employment Appeal Tribunal

Both the ET and EAT dismissed all claims/appeals respectively brought by RO. The reasoning of both tribunals is summarised in the CA judgment. The CA considered the key issues on appeal.

This article was first published in the Discrimination Law Association Briefing 909-921