Employer duty of care for the welfare of employees – are you aware?
An employee who had successfully applied for a secondment opportunity abroad had it withdrawn following advice given to the employer that the employee would be at ‘high risk’ if seconded, as a result of a health condition. The employee 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 adopt the course of permitting the employee to take up the secondment, but with mitigations and protections in place to safeguard her health, safety and wellbeing.
The claim was dismissed by the Employment Tribunal.
The appeal upheld the findings of the tribunal, stating that the withdrawal of a foreign secondment offer, following advice that it would risk the employee’s safety, 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 employees working abroad, and no lesser measures would have achieved that aim. The employee would continue to be at risk if she went abroad and the employer was entitled to act in order to avoid that risk.
The duty of care argument is compelling – particularly in the instance that an employee is working away from their normal place of work. Should you have any questions on secondments, contact one of our qualified CIPD Consultants on 0800 9995 121