Thread by @JasonBraier

1/ Judd v Cabinet Office: A case on reasonable adjustments & s.15 EqA in re withdrawing a secondment due to inadequacy of health provision to an employee at medical risk, though 1 where the EAT doesn't really grapple with interesting legal issues
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ The EAT decision is fairly light on facts, but J worked at the Cabinet Office & successfully applied for a secondment in Montenegro. J had 2 significant health episodes in the months before applying. There were concerns about how she'd be treated if recurring in Montenegro.

3/ There were particular concerns about the lack of joined up services between Montenegro & the UK & that the medical authorities there wouldn't have access to J's medical notes. OH suggested sensible precautions re doctor registration, wellbeing planning & contingency planning.

4/ However the independent contractor dealing with risk issues for the CO disagreed with the OH, considering the adjustments identified wouldn't mitigate the risk concerns. As a result, they marked J as high risk & the Cabinet Office withdrew the secondment offer.

5/ J brought a claim on the basis of FTMRA & discrimination arising from disability. The ET found objective justification of the s.15 claim & that no further reasonable adjustments would have enabled J to take on the secondment given the risk to her in going.

6/ J appealed that the ET had got confused between whether an adjustment needs to remove a disadvantage or just alleviate it, stating both positions & thus misdirecting itself as to the law.

7/ The EAT found no inconsistency between those statements, saying there's an obligation to make an adjustment capable of removing the disadvantage & a possible obligation (depending on reasonableness) to make an adjustment alleviating the disadvantage.

8/ Here, the mere prospect of protecting J's health & safety still placed her at potential risk & danger, & it was open to the ET to find the adjustments not reasonable steps as against the disadvantage in that context.

9/ It's unfortunate that the EAT judgment cites no authority & doesn't take the opportunity to expand on this interesting area, as the question of rejecting reasonableness of partial alleviation of disadvantage is one which merits helpful appellate guidance.

10/ On the s.15 claim, the EAT noted that J produced detailed evidence on the psychological impact on her of withdrawing the secondment, & that the ET didn't refer to it, but held the ET those consequences to J & anyway that evidence didn't undermine the CO's decision.

11/ The EAT was willing, without giving it detailed consideration, to find also that the ET dealt appropriately with how J's reasonable adjustments claims fed into the s.15(2) objective justification analysis. J made additional perversity arguments, which were rejected.

12/ To my mind this is a 2nd missed opportunity in recent years to get to grips with interesting questions about s.15 & FTMRA claims re placements of those with medical needs in places with bad medical provision. The other was Owen v Amec, where the ET1 didn't plead a s.15 claim.