Employer duty of care for the welfare of employees – are you aware?

An employee who applied for a secondment opportunity abroad then had the opportunity withdrawn because the employer believed that the employee would be at ‘high risk’ if seconded, due to a pre-existing health condition. The employee subsequently brought claims for discrimination and failure to make reasonable adjustments.

The key issue under this claim was whether the withdrawal of the secondment opportunity was a proportionate step in the circumstances or whether the employer was required to adapt the way in which the secondment was planned with mitigations and protections in place to safeguard her health, safety and wellbeing.

The claim was dismissed by the Employment Tribunal. It was believed that the adjustments needed to make the secondment “safe” were not proportionate.

A later appeal upheld the findings that the withdrawal of a foreign secondment offer did not amount to failure to make reasonable adjustments or discrimination arising from disability. It was held that withdrawing the secondment offer was a proportionate means of achieving the legitimate aim of protecting the health and safety of secondees working abroad, and no lesser measures would have achieved that aim.

This case is important for employers as a decision made to protect an employee’s health and safety will not always be seen as popular! In this case the employer was right to withdraw the secondment, even though the decision was criticised by the very employee it was aimed to protect.

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