Diya Sen Gupta QC successfully represented Amec Foster Wheeler Energy Limited and another in the Court of Appeal, against Mr Owen’s appeal from the dismissal of his disability discrimination claims.
The issues considered by the Court of Appeal were: the correct approach to direct disability discrimination claims; the distinction between direct disability discrimination and discrimination arising from disability; and whether the concept of “indissociability” can apply to disability discrimination.
Mr Owen, an engineer was employed by Amec Foster Wheeler Energy Limited at the relevant time. In 2015, a request to send him on overseas assignment was refused because his disabilities gave rise to a high risk of medical complications. Mr Owen complained that this amounted to direct disability discrimination, contrary to section 13 of the Equality Act 2010; indirect disability discrimination, contrary to section 19; and a breach of the duty to make reasonable adjustments, contrary to section 20.
The Employment Tribunal dismissed each of Mr Owen’s claims. The EAT (Her Honour Judge Eady QC) upheld that decision. Mr Owen appealed to the Court of Appeal.
The “heart” of the appeal concerned the direct discrimination claim (at ). In that regard, Singh LJ (with whom Baker and Newey LJJ agreed) held as follows:
- On the facts, there was no direct
discrimination because “a hypothetical
comparator with the requisite medical risk would have been treated in
exactly the same way even if they did not have [Mr Owen’s] particular disability” (at ).
- The Claimant’s submission, “that there was in truth no real comparator
in this case at all…because any
realistic comparator that could be identified would also inevitably have a
disability”, was “revealing because
it discloses the underlying problem for the Claimant that, in the absence of a
comparator, it is difficult to see how section 13 could apply to circumstances
such as these at all”. That argument was one which was “not apt in a case alleging breach of section
13 and, if anything, should have been mounted under section 15 of the 2010 Act…Section
15 is unusual in the field of discrimination law because it does not require a
comparator at all” (at -).
Ms Sen Gupta submitted at the hearing before us, there is a crucial difference
between the wording of section 13, which refers to “less favourable” treatment
and therefore necessarily requires a comparison to be made (with an actual or
hypothetical comparator) and that of section 15 (which refers simply to
treatment being “unfavourable”)” (at ).
Sen Gupta also rightly reminds this Court that, in Aylott, Mummery LJ said the
concepts used in the context of disability discrimination law (at that time the
Disability Discrimination Act 1995) are not always the same as those used in
the context of racial and sex discrimination law: see para 1 and 73 of his
judgment” (at ).
the context of racial or sex discrimination it can sometimes be the case that a
criterion is used to differentiate between persons which exactly corresponds to
the prohibited characteristic and therefore can truly be regarded as a proxy
for it” (at ).
accept the submissions of Ms Sen Gupta that [Amnesty International v Ahmed] is
not analogous to the present case. In the present case there was no “proxy” for
the protected characteristic which was used by the Respondents as the ground on
which they treated the Claimant less favourably than the hypothetical
comparator” (at ).
would also accept the submission made by Ms Sen Gupta that, unlike racial or
sex discrimination, the concept of disability is not simply a binary one. It is
also not the case that a person’s health is always entirely irrelevant to their
ability to do a job. For those reasons, the concept of indissociability… cannot
readily be translated to the context of disability discrimination” (at
The full judgment can be read here.
The Claimant has applied for permission to appeal to the Supreme Court.